Congress acted within its rights when it allowed the Food and Drug Administration (FDA) to regulate vaping products the same as cigarettes and other forms of tobacco, the U.S. Fifth Circuit ruled when it rejected an appeal by a vaping trade group and a Mississippi vape seller.

In its decision, the three-judge panel pointed to the Family Smoking Prevention and Tobacco Control Act of 2009, which allows the FDA to determine what tobacco products fall under the law. The judges found that the FDA’s power of determination in this case fit “comfortably” within the exceptions to constitutional rules against delegation of powers.

The Tobacco Control Act did not explicitly include vape products among those it regulates when it was passed, but it includes a clause that allows the Department of Health and Human Services Secretary to decide which additional products would fall under the mandate.

Plaintiffs Big Time Vapes Inc. and United States Vaping Association Inc. sued the FDA in August, arguing that the FDA violated the Constitution’s anti-delegation provisions that are intended to promote the separation of powers.

A lower court tossed the lawsuit in December and the plaintiffs appealed.

According to Law 360, the Mississippi vape vendor and the vaping association told the Fifth Circuit in February that their appeal “was an opportunity for the circuit court to assert a more forceful application of the nondelegation doctrine, which prevents legislators from assigning too much of their authority to other agencies.”

However, the Fifth Circuit found that the Tobacco Control Act ensures that the FDA has the authority to address issues related to tobacco use by young people and tobacco dependence, according to Law 360.

The Act also allows for new and flexible enforcement authority for oversight of the tobacco industry and promoting cessation of tobacco use is among its purposes, the judicial panel found, saying it’s clear that the law’s purpose revolves around protecting public health as it pertains to tobacco use.

“In addition, many of the key regulatory decisions were already made by Congress, such as the requirement that tobacco companies submit data about their products’ ingredients and the prohibition against introducing new tobacco products without premarket authorization,” Law 360 explains.

“As those substantive provisions show, Congress painted much of the regulatory canvass, leaving the finishing touches to the FDA,” the Fifth Circuit panel wrote in its decision.

Juul litigation

Beasley Allen lawyers Joseph VanZandt and Sydney Everett, together with Mass Torts Section Head Andy Birchfield, are currently representing several individuals who are suing the top U.S. vape maker JUUL for the negative impact its products have had on their lives. Recognizing the critical threat to young people ensnared by nicotine addiction, and its effect on our nation’s educational system, our firm has also joined other nationally recognized law firms to represent school districts and public entities across the country in the fight to stop the school vaping crisis.

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