The vaping industry’s second attempt at getting the U.S. Supreme Court to hear arguments challenging the validity of FDA’s deeming regulations has hit a dead end.
As its most recent term comes to end, the U.S. Supreme Court has declined to hear Moose Jooce, et al. v. Food & Drug Administration, a lawsuit that challenges the U.S. Food & Drug Administration’s (FDA) deeming regulations.
Moose Jooce, a Michigan-based vaping retailer, asked the Supreme Court to determine whether FDA acted improperly when the regulations were signed into law. Specifically, the plaintiffs alleged that FDA acted improperly because the person that issued the deeming regulations was not qualified to do so per the Appointments Clause. In this case, the rule was issued by Leslie Kux, the associate commissioner for policy, and not the commissioner himself.
FDA has argued that the commissioner—in both 2016 and 2019—ratified the regulations.
The plaintiffs asked the court to consider two questions:
- May a regulation be ratified if the Appointments Clause prohibited the purported agent’s exercise of rulemaking authority?
- If so, must the ratification comply with the constraints that would normally govern an officer’s rulemaking, such as the Administrative Procedure Act’s “reasoned decision-making” requirement?
While thousands of cases are brought before the Supreme Court, just getting a hearing—let alone winning an appeal—is a longshot. The court says that it agrees to hear between 100-150 of the approximately 7,000 requests it receives each year.
The court also declined to take up a different FDA challenge brought upon by the vaping industry.