Big Time Vapes v. FDA

Case Status:

Case Start Date:
August 19, 2019

Deciding Court:
Fifth Circuit Court of Appeals

Original Court:
Southern District of Mississippi


Najvar Law Firm (NLF) filed a lawsuit in the Southern District of Mississippi in August 2019 on behalf of the United States Vaping Association and Big Time Vapes, a vape shop in Picayune, MS. The suit challenges the FDA’s unilateral authority to decide which segments of the national tobacco-products industry should be regulated.

The lawsuit’s central theory is that Congress ceded too much authority to the executive branch when it passed the Tobacco Control Act of 2009. Specifically, 21 U.S.C. § 387a(b) provides that the Tobacco Control Act shall apply to cigarettes and smokeless tobacco, and to “any other tobacco products that the Secretary [of Health and Human Services] … deems to be subject to [the Act].” The lawsuit argues that, in transferring the power to deem other products to be subject to the Tobacco Control Act—with no parameters or factors to guide the “deeming” decision—Congress violated the “nondelegation” principle. In effect, Congress applied the TCA only to certain types of “tobacco products,” and not to others, but punted to HHS the power to regulate those other products (or not to regulate them), without setting out any policy. Seven years later, in 2016, the FDA seized on that power, “deeming” everything that Congress left out that was already on the market in 2009, and e-cigarette products, a wholly distinct industry that requires different regulation—to be subject to the 2009 law.

Article I of the Constitution says that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States,” and the nondelegation principle holds that Congress cannot transfer its “legislative” power to another branch. This nondelegation principle has been recognized as a bedrock of the separation of powers since the inception of the Constitution. America’s fourth Chief Justice, John Marshall, wrote in 1825 that Congress may not “delegate … powers which are strictly and exclusively legislative.” The Supreme Court has twice applied the nondelegation principle to strike down executive action, but those cases were issued in 1935. While those cases remain good law, the Supreme Court has not invalidated any other delegations as excessive in the 85 years since, applying a deferential test and allowing the growth of the modern administrative state. However, in June 2019, the Supreme Court’s split decision in Gundy v. United States, 139 S. Ct. 2116 (2019), reflects that there might now be a majority on the Court ready to reinvigorate the doctrine, potentially applying a less deferential standard.

Interestingly, NLF argues in this case that Congress’s delegation of “deeming” authority in the Tobacco Control Act is so extreme that it is unconstitutional even under current law, regardless of whether the Supreme Court ultimately applies a stricter standard. As Plaintiffs argue in their reply brief, filed April 9, 2020 in the Fifth Circuit: “The Court does not have to decide whether some broadly-stated standard is sufficient under current law; it need only apply the holding of Panama Refining that Congress exceeded its powers when it imposed no standard at all.



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