State of Vape: Vaping Petitioned to the Supreme Court

State of Vape: Vaping Petitioned to the Supreme Court

The U.S. Supreme Court is the nation’s highest court and hears around 100-150 cases a year out of 7,000 cases it is asked to review. We previously discussed on the State of Vape that it was a matter of when the Supreme Court would hear a case regarding vaping considering that two cases were already in appeals courts. Cases regarding vaping have reached state supreme courts in Michigan and New York. Big Time Vapes, a vape shop in Mississippi, and the United States Vaping Association (USVA) petitioned the U.S. Supreme Court to review the lawsuit they filed against the FDA.

How Vaping Made It This Far: The Nondelegation Doctrine

The attempts to politicize access to alternative nicotine products such as vaping products have existed since vaping was introduced to North America. Big Time Vapes and the USVA have challenged the 2009 Tobacco Control Act by stating that Congress unconstitutionally handed over legislative authority to the FDA. The doctrine of nondelegation states that Congress cannot hand over lawmaking powers to executive agencies such as the FDA, indicating the separation of powers between the executive and legislative branches. 

Nondelegation has been applied in the Supreme Court before, but you have to go all the way back to the New Deal era to find any rulings on violations of the doctrine of nondelegation. The 1935 Supreme Court case Schechter Poultry Corp. v. United States was a case in which provisions of the National Industrial Recovery Act were struck down by the Supreme Court. This was cited as a violation of the doctrine of nondelegation as it gave the President of the United States broad authority to interfere in commerce.

Congressional delegation of legislative authority is an implied power of Congress that is constitutional. The FDA (coincidentally) and the IRS are two examples of Congress delegating legislative authority to executive branches, as both have been given broad mandates by Congress to carry out their specific duties such as regulating food and drugs (FDA), as well as collecting taxes (IRS). A recent Supreme Court case, Gundy v. United States (2019), revisited the nondelegation doctrine in the context of the Sex Offender Registration and Notification Act (SORNA) of 2006. 

Vaping As A Check On Executive Power?

With a 6-3 conservative majority on the court and conservatives’ fear of the executive branch influencing the legislative branch and other areas of government, the issue of vaping may be the turning point for the doctrine of nondelegation as a whole if the Supreme Court chooses to take it up. It may take several weeks for the Supreme Court to decide on whether or not to hear the case and we will keep you up to date on whether or not the Supreme Court chooses to hear the case.

Big Time Vapes and the USVA have failed to make their cases to two lower federal courts since the original lawsuit was filed in 2019. In addition, to gain a writ of certiorari (commonly known as a cert), four Supreme Court justices must agree to hear the case. In this case, this may have to do with one of the reasons the Supreme Court usually hears cases: resolving a conflict in the interpretation of a federal law or a provision of the federal Constitution. Big Time Vapes and the USVA fall under both of these statements: the interpretation of the Deeming Rule through the Tobacco Control Act and whether or not the burdens placed on the vaping industry violate the doctrine of nondelegation.


The team is here to help you make the best decisions for you and your business. We will be keeping you up to date on the latest happenings in the world of vape. If you have any questions or concerns, you can always contact your account manager or sales representative.

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