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.
Greg Stohr – Bloomberg – 2021-06-07.
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