Two vaping manufacturers, Magellan Technology and Lotus Vaping Technologies, are now pursuing Supreme Court review after facing setbacks in their appeals against FDA marketing denial orders (MDOs). Both companies have recently submitted petitions for writs of certiorari to the high court.

Magellan Technology, Inc. initiated its Supreme Court petition on January 22, seeking a review of its appeal that was dismissed by the Second Circuit Court of Appeals on June 16. The appeal contested MDOs issued in September 2021 for 12 non-tobacco-flavored refill pods for the Juno pod vape produced by the company.

On the other hand, Lotus Vaping Technologies, LLC, submitted its petition to the high court on February 9, a development so recent that the Supreme Court docket has yet to be updated with the filings. Lotus faced MDOs in September 2021 for over 200 bottled e-liquids, spanning various brands, numerous non-tobacco flavors, and multiple nicotine strengths. The company's appeal, combined with Nude Nicotine, Inc., was denied by the Ninth Circuit Court on July 7, 2023.

Magellan, headquartered in western New York State, and Lotus, based in Idaho, are both represented by attorney Eric Heyer from the Washington, D.C.-based Thompson Hine law firm. Heyer has extensive experience handling appeals for clients within the vaping industry.

Numerous vaping manufacturers and distributors have launched challenges against FDA denials in federal courts, with many cases still awaiting resolution. The outcomes of these legal battles could have significant implications for the vaping industry as a whole.

Circuit courts are becoming increasingly split

The divergence among circuit courts on vaping-related appeals is becoming more pronounced, signaling a potential shift in the legal landscape. For a case to be considered for review by the Supreme Court, at least four out of the nine justices must agree to grant a writ of certiorari, a Latin term meaning "to be made certain." However, the likelihood of acceptance is slim, with only about two to four percent of petitions receiving approval each year. Should the Supreme Court decline to review the petitions, the decisions of the lower courts will remain in force.

To date, no vaping-related appeal has been granted review by the Supreme Court, with all listed cases denied without elaboration. Nevertheless, some observers argue that the FDA's vaping regulations are ripe for Supreme Court review, particularly in light of the recent Fifth Circuit Court ruling against the FDA in the Triton Distribution appeal. This ruling, coupled with the Eleventh Circuit's decision in favor of six vape manufacturers in 2022 and a partial victory for Fontem US (Blu) in the District of Columbia Circuit last year, suggests a notable split in circuit court opinions.

While five circuits have upheld FDA denials, the emergence of divergent rulings from circuits like the Fifth and Eleventh, alongside other favorable outcomes for vaping interests, may sway four Supreme Court justices to consider accepting appeals such as those from Magellan or Lotus.

There's also speculation that the FDA might pursue Supreme Court review of its loss in the Fifth Circuit. Jonathan Adler, a respected legal scholar at Case Western Reserve University School of Law, highlighted this possibility in a Reason blog post discussing the Triton decision. Adler, known for his extensive work on vaping regulations, emphasized the significance of the Fifth Circuit's ruling and its potential implications for broader legal challenges.

Notably, even tobacco industry lawyers appear to anticipate potential Supreme Court intervention. In a motion filed on February 1, R.J. Reynolds requested the Fifth Circuit to halt proceedings in its appeal of Vuse menthol refill MDOs, citing the need to await further developments in the Triton Distribution case, including potential Supreme Court involvement.

Supreme Court petitions related to vaping in the past

As noted earlier, previous attempts by vaping petitioners to seek relief from the Supreme Court have met with disappointment:

The court has dismissed two cases brought by R.J. Reynolds challenging flavor bans in California. On January 8, the court opted not to review Reynolds' lawsuit against the State of California over the statewide prohibition on in-person sales of flavored vape and tobacco products. In February 2023, the court declined to entertain Reynolds' challenge to a similar ban imposed by Los Angeles County.

In October of last year, the Supreme Court turned down a petition by AVAIL Vapor seeking review of its appeal against an MDO, which had been denied by the Fourth Circuit in December 2021. The petition was dismissed without any accompanying commentary.

In December 2021, the Supreme Court rejected Breeze Smoke's application for a stay pending appeal of its MDO, subsequent to the Sixth Circuit Court of Appeals' denial of the stay.

In June 2021, the high court declined a petition to rehear an appeal in a consolidated lawsuit by several small vape businesses challenging the FDA Deeming Rule. The case, known as Moose Jooce, et al. v. FDA, et al., was initiated and appealed by the Pacific Legal Foundation.

Also in June 2021, the Supreme Court turned away a challenge to the Tobacco Control Act brought by Mississippi-based Big Time Vapes and the United States Vaping Association (USVA). The Tobacco Control Act, enacted in 2009, conferred upon the FDA the authority to regulate tobacco and nicotine products. Big Time Vapes is believed to be the first vaping company to appeal a lower-court defeat to the Supreme Court.