Vape Shop - courtesy of Peter Grznár via Wikimedia Commons
The US Supreme Court refused to hear a case brought by a US vape shop in the state of Mississippi. Big Times Vapes argued that the Food & Drug Administration (FDA) was given unconstitutional powers of regulation over the vape business. The court’s refusal to hear that case confirms – for now – FDA’s continued oversight of the industry.
The appeal centers on the US Tobacco Control Act of 2009 which the US Congress gave FDA authority to regulate tobacco products which resulted in the blocking of sales of some products and advertising and promotional limitations In 2016, FDA claimed authority to oversee the e-cigarette industry and started regulating e-cigarettes, vape pens, cigars, and hookah. Under federal law, these products were classified as “tobacco products.” Big Vape argues that the Congress violated the US constitution by given FDA such sweeping powers.
The company says this means that FDA has sole “unbridled discretion” over the vape industry, such as to block sales of new products. Big Vapes wanted to invoke the so-called non-delegation doctrine, a constitutional rule that says Congress must give clear guidance to an agency before handing off its legislative responsibilities. However, according to Bloomberg the Supreme Court hasn’t invalidated a law as an unconstitutional delegation since 1935. It was thought that maybe the court’s five conservative justices might be more willing to hear the case, but they declined.
The industry argues that vaping and e-cigarettes have the potential to significantly reduce the harm caused by cigarettes. In response, FDA argues that the law allowed the agency to regulate products that could lead to nicotine addiction.