The Supreme Court to Review E-Cigarette Dispute and Judge-Shopping Case in January

The U.S. Supreme Court has chosen to review a case concerning flavored vaping products and alleged forum shopping by a manufacturer on Jan. 21, 2025.

The case, known as Food and Drug Administration (FDA) v. Reynolds Vapor Co., was scheduled on Oct. 31 after the justices agreed on Oct. 4 to hear the dispute.

The focus of the nation’s highest court will be on procedural issues rather than the FDA’s ruling on product approval.

R.J. Reynolds Vapor Co. produces e-cigarette products under the Vuse brand. The company, headquartered in North Carolina, falls under the U.S. Court of Appeals for the Fourth Circuit’s jurisdiction.

However, the company decided to appeal the FDA’s denial to the Fifth Circuit, which is believed to be sympathetic to the vaping industry and has permitted the products to remain on the market during the case’s proceedings.

The federal government claims that the manufacturer engaged in judicial forum shopping to secure a favorable outcome in court, a practice frowned upon in legal circles.

The Supreme Court is urged to halt this practice by U.S. Solicitor General Elizabeth Prelogar.

Under the federal Family Smoking Prevention and Tobacco Control Act, FDA approval is required before a new tobacco product can be sold.

The Fifth Circuit has allowed manufacturers to file appeals in the circuit, even if they are not based there, as long as the petition includes sellers of the products as litigants.

In 2016, the FDA implemented regulations for electronic nicotine delivery systems, including vaping products. Reynolds’ applications for FDA approval were rejected in 2023.

The law mandates FDA approval only if the product is deemed safe for public health, a requirement Reynolds failed to meet according to the FDA.

Reynolds appealed in the Fifth Circuit, citing the presence of sellers of its products in the circuit. The court ruled against the FDA in February.