The US Supreme Court was skeptical of government arguments they should limit where e-cigarette manufacturers should be allowed to sue in order cut back on so-called forum shopping.
The statute at the heart of arguments on Tuesday limits where “any person adversely affected” can challenge the denial of an application to sell tobacco products to either their home circuit or the US Court of Appeals for the D.C. Circuit.
The question for the justices is whether retailers are “adversely affected” to the point that they can sue alongside manufacturers, allowing industry to bring a case outside their home circuit.
The New Orleans-based Fifth Circuit read the statute broadly to allow RJ Reynolds Vapor Co. to challenge the Food and Drug Administration’s sales application denial outside of its home circuit. The Fifth Circuit is the only federal circuit to strike down the FDA denials.
As a result, the forum shopping here has been “remarkable,” said Justice Department attorney Vivek Suri, noting that almost all the challenges to these FDA denials are brought in the Fifth Circuit.
Several justices suggested that the plain language of the statute includes retailers because they are adversely affected by the denial.
Retailers are losing money by not being allowed to sell these products, Justice Brett Kavanaugh said. That sounds like “adversely affected,” Kavanaugh said.
Suri said retailers weren’t harmed by the FDA’s denial of a new product, stressing they’re just “bystanders” at that point.
It’s “a bit much to call them bystanders,” Chief Justice John Roberts said, noting that selling these products was the whole point of their business.
The case is one of two this term in which the justices are asked to cut back on forum shopping out of the Fifth Circuit.
The case is Food and Drug Administration v. R.J. Reynolds Vapor Co., U.S., No. 23-1187, argued 1/21/25.