Supreme Court Explores Allegations of Court Shopping by Vape Manufacturers
The federal government is opposed to the Fifth Circuit’s practice of permitting external litigants to file lawsuits within its jurisdiction.
On January 21, the U.S. Supreme Court expressed skepticism regarding the federal government’s position that seeks to limit the locations where the e-cigarette industry can sue, a maneuver referred to as forum shopping.
The federal government contends that the manufacturer has been manipulating the judicial system through forum shopping—a practice generally considered unethical—to achieve more favorable court outcomes.
The oral hearings for the case Food and Drug Administration (FDA) v. R.J. Reynolds Vapor Co. concentrated on procedural matters rather than assessing the FDA’s correctness in its 2023 decision to deny approval for specific flavored vaping products from the company.
R.J. Reynolds Vapor Co. produces e-cigarette items branded as Vuse. The company is incorporated and based in North Carolina, which falls under the jurisdiction of the U.S. Court of Appeals for the Fourth Circuit.
In 2016, the FDA implemented regulations governing electronic nicotine delivery systems.
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Reynolds submitted three applications to the FDA for product approval, which were denied in 2023.
The company chose to appeal the FDA’s decision to the Fifth Circuit instead of the Fourth Circuit. The Fifth Circuit’s jurisdiction includes Texas, Louisiana, and Mississippi.
The Fifth Circuit subsequently issued an order permitting the products to be marketed while the case is under consideration. This court allows challenges to FDA product denials to be submitted within its jurisdiction, even if the manufacturer is not based there.
U.S. Department of Justice attorney Vivek Suri stated on January 21 that the Fifth Circuit has “effectively nullified” the restrictions on venue imposed by the federal Family Smoking Prevention and Tobacco Control Act.
The relevant statute stipulates that “an adversely affected person may challenge the denial of an application only in its home circuit or the D.C. Circuit.”
The Fifth Circuit permits applicants to contest denials, provided they can involve a retailer in their legal action, Suri explained.
Suri noted that retailers are merely “bystanders” in the context of FDA applications.
“They do not submit information to the agency, do not take part in the agency’s review process, do not receive the final order from the agency, and are not privy to the full details of the application or administrative record. Their interests extend beyond the scope Congress aimed to protect,” he argued.
Chief Justice John Roberts responded to Suri: “It’s quite a stretch to refer to them as bystanders. … I don’t understand why retailers wouldn’t be the most probable candidates to initiate an action.”
Justice Brett Kavanaugh remarked that retailers facing financial losses due to the inability to sell vaping products are indeed being “adversely affected.”
Suri stated that there has been “not a single instance where a retailer has filed an independent challenge without the participation of the applicant.”
He argued that the manufacturer is utilizing the retailer as a “prop” to gain access to a more favorable circuit.
“They aren’t contributing any substance to the case itself,” Suri added.
He claimed the strategy of external applicants suing in the Fifth Circuit is being improperly exploited.
“In 2024, our tally showed that approximately 75 percent of e-cigarette cases were filed … in the Fifth Circuit, all initiated by out-of-circuit applicants trying to leverage this tactic,” he said.
Justice Amy Coney Barrett expressed concern that limiting available judicial forums might have broader implications beyond tobacco regulation.
“The government faces lawsuits in numerous jurisdictions,” she remarked to Suri. “And this could have repercussions beyond just the [Tobacco Control Act], correct?”
Reynolds attorney Ryan Watson responded: “The Tobacco Control Act permits any adversely affected individual to challenge a marketing denial order, and retailers qualify easily. … The law’s intent was to extend judicial review beyond merely the applicant, and retailers are the next logical group.”
Justice Ketanji Brown Jackson pointed out to Watson that retailers do not have a vested interest in selling vaping products until the FDA grants regulatory approval.
“At that point, they truly have a stake in the outcome,” she said.
The Supreme Court is anticipated to issue a ruling on FDA v. R.J. Reynolds Vapor Co. by the end of June.
