Vaping retailers and manufacturer prevail at U.S. Supreme Court in venue dispute against FDA
Client(s) R.J. Reynolds Vapor Company; RJR Vapor Company, L.L.C.; Mississippi Petroleum Marketers and Convenience Stores Association; Avail Vapor Texas, L.L.C.
On behalf of retailers and R.J. Reynolds Vapor Company, Jones Day secured a victory at the United States Supreme Court in a case involving the question whether retailers may challenge FDA marketing denial orders for tobacco products. The Supreme Court held that retailers may indeed challenge such orders, agreeing with Jones Day's contention that the retailers were adversely affected by the orders.
The case originated in the Fifth Circuit when Reynolds and several retailers jointly sought review of FDA's marketing denial orders for menthol-flavored Vuse e-cigarettes. The Tobacco Control Act allows "any person adversely affected" by a denial order to challenge that order in the person's home circuit or the D.C. Circuit. If it sued alone, Reynolds would have had to file suit in the Fourth Circuit (its home circuit) or the D.C. Circuit. But because the adverse effects of the marketing denial orders extended to retailers located in the Fifth Circuit, Reynolds jointly filed a litigation challenge along with such retailers. The Fifth Circuit agreed with Jones Day's position that the retailers were adversely affected because they could no longer sell the products at issue. The Supreme Court affirmed, allowing the case to proceed in the Fifth Circuit.
FDA v. R.J. Reynolds Vapor Co., No. 23-1187, 606 U.S. --- (U.S. June 20, 2025)
