FDA’s Vaping Regulations Survive as Supreme Court Rejects Appeal

(Bloomberg) -- The U.S. Supreme Court rejected a challenge to the Food and Drug Administration’s regulation of electronic cigarettes and vape pens, turning away an opportunity to put broad new restrictions on the power of federal administrative agencies.

The appeal by a Mississippi vape shop and an industry trade group sought to invoke the so-called non-delegation doctrine, a sparingly used constitutional rule that says Congress must give clear guidance to an agency before handing off its legislative responsibilities.

The Supreme Court hasn’t invalidated a law as an unconstitutional delegation since 1935, but five of the court’s conservatives -- all except new Justice Amy Coney Barrett -- have indicated they’re interested in revitalizing the doctrine.

The fight turned on the 2009 law that gave the FDA broad authority to regulate tobacco by letting the agency restrict ingredients, limit advertising to young people, and block the sale of new products. The law, known as the Tobacco Control Act, explicitly covered cigarettes and smokeless tobacco and said the FDA could bring other “tobacco products” within its ambit.

In 2016 the FDA said it would start regulating virtually everything that met the law’s definition of “tobacco products,” including e-cigarettes, vape pens, cigars, and hookah.

In their appeal, Big Time Vapes Inc. and the United States Vaping Association said Congress violated the Constitution by giving the FDA such an open-ended grant of authority.

“The authority to decide the circumstances under which a given activity or product shall be subjected to federal regulation is quintessentially one of legislative policy,” they argued.

The Biden administration urged the Supreme Court to reject the appeal. The administration said Congress made clear that the FDA should comprehensively regulate the tobacco industry to protect the public, particularly children, from nicotine dependence, health risks, and false or misleading advertising.

“In the definitions, findings, and statements of purpose that it included in the TCA, Congress laid out intelligible principles with appropriate boundaries for FDA to apply,” acting U.S. Solicitor General Elizabeth Prelogar argued in court papers. “That is more than Congress was required to do to satisfy the non-delegation doctrine.”

Past Supreme Court decisions have said that Congress must lay out an “intelligible principle” for agencies to follow in making regulatory decisions. In a 2019 opinion for himself and two colleagues, Justice Neil Gorsuch said the use of that phrase had been a “misadventure,” and called on the court to revisit the subject.

The case is Big Time Vapes v. FDA, 20-850.

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