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State of Vape: Vaping in the Supreme Court?

October 30, 2020

State of Vape: Vaping in the Supreme Court?

The appointment of Amy Coney Barrett to the Supreme Court of the United States (SCOTUS) has raised lots of questions on what will happen now that conservative judges hold a 6-3 majority in the Supreme Court. It is often said that vapers are just below pro-Second Amendment supporters when it comes to supporting their cause. Thanks to our system of checks and balances, vaping legislation and regulation could be put on hold or even advanced by the courts. That being said, will vaping ever make it to the Supreme Court?


Why Vaping Could Make It To The Supreme Court


The Supreme Court is the final court regarding federal law, and has the power of judicial review and the ability to invalidate statutes that violate provisions of the Constitution. One of the ways that vape regulation or legislation could be considered (un)constitutionaldoes not directly involve vaping. The Appointments Clause of the Constitution states that officials in the executive branch who exercise significant authority must be nominated by the president and confirmed by the Senate. Mitch Zeller, the head of the FDA’s Center for Tobacco Products, is often considered as one of the top regulators of the vaping industry, only next to the head of the FDA himself, Dr. Stephen Hahn. Zeller has been in the position since 2013.


Zeller’s position within the FDA does not require a nomination by the president and confirmation by the Senate, while Dr. Hahn went through that process and was even asked questions about vaping during his confirmation process. President Donald Trump has proposed spinning off the Center for Tobacco Products as a separate department independent from the FDA, which would require him to nominate someone to Zeller’s current position and then have that person confirmed to the Senate. 


The reason the Appointments Clause exists is so that there can be accountability to the people’s representatives (in this case, the Senate). Zeller’s position does not require that accountability. In addition, it can be said that Zeller does exercise significant authority as he can directly impose regulations on vaping products, which are used by millions of Americans as alternative nicotine products. In fact, the Deeming Rule itself is seen as an example of government officials exercising significant authority without accountability to the people and its representatives. Some members of Congress have taken note of this in 2019, namely Senators Rand Paul (R-KY) and Ron Johnson (R-WI). Paul is known for wanting to drastically reduce the size and scope of the government much like his father, former U.S. Representative Ron Paul (R-TX).


Vaping In The Courts: What We Know


While it may be unthinkable that the Supreme Court would hear a case regarding the legality of vaping and eJuice flavors, the issue has already reached state supreme courts in New York and Michigan, where flavor bans were temporarily blocked by the respective state supreme courts. Last year,the U.S. Court of Appeals for the District of Columbia Circuit ruled that the FDA could regulate vaping products like other tobacco products, holding that the products are “indisputably highly addictive and pose health risks, especially to youth, that are not well understood.” As of September 2020, two cases regarding vaping arecurrently in the U.S. Court of Appeals, the second-highest court after the Supreme Court.


What does this mean for vaping? At the state level, they are certainly taking notice. With more regulation and legislation coming our way in 2021, and recent national elections taking place, the vaping industry might as well prepare for battles in the courtroom as well as the ballot box. As a business owner, we encourage you to take action and inform your customers about recent developments in the vaping industry.


Not A Matter of If, But When


While the eJuices.co team is unsure whether or not vaping cases will actually go to the Supreme Court itself, the possibility is definitely there. When the vaping cases currently in the Court of Appeals go to the Supreme Court, it may call into question whether or not the Center for Tobacco Products is violating the Appointments Clause by wielding significant power and authority without accountability to the people and their representatives in government. This could have an impact on how vape products are regulated and the legislation around vaping could change if the Supreme Court rules against the Center for Tobacco Products and indirectly in the favor of vape shops and vapers across the United States. In addition, it could also force government agencies to be more accountable to the people and their representatives in other industries as well.


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