Court Upholds FDA Authority to Regulate E-Cigarettes, Nicotine Vapor Products

Plaintiffs could seek review of decision
Photograph: Shutterstock

LAKEVILLE, Minn. — On June 25, the U.S. Circuit Court of Appeals for the Fifth Circuit upheld the U.S. Food and Drug Administration’s authority to regulate deemed tobacco products, specifically electronic cigarette/nicotine vapor products. 

In 2009, Congress passed the Family Smoking Prevention and Tobacco Control Act (TCA), which automatically applied to all cigarettes, cigarette tobacco, roll-your-own tobacco and smokeless tobacco. Section 901 of the TCA provides that the TCA would also apply "to any other tobacco products that the Secretary [of Health and Human Services] by regulation deems to be subject to” the TCA. 

In 2016, the FDA issued regulations that cigars, pipe tobacco, electronic cigarette/nicotine products, hookah products, nicotine dissolvable products and nicotine gels were deemed to be tobacco products subject to the TCA, extending the agency’s authority and regulations to those “deemed” products.

On Aug. 19, 2019, Big Time Vapes Inc. and the United States Vaping Association Inc. sued the FDA in a Federal District Court in Mississippi, seeking a declaration that the TCA’s delegation of authority to the FDA to regulate tobacco products it deemed subject to the TCA was invalid.

They claimed primarilythat the TCA unconstitutionally delegated to the secretary of Health and Human Services and the FDA, which is overseen by the secretary, the power to deem other tobacco products to be subject to the TCA’s mandates and regulations. 

Specifically, the plaintiffs requested the court to declare that Section 901 of the TCA violated the non-delegation doctrine under the U.S. Constitution and issue an injunction preventing the FDA from enforcing the TCA against them and electronic nicotine products. The District Court ruled against the plaintiffs, who then appealed to the U.S. Fifth Circuit Court of Appeals.

Article 1 of the U.S. Constitution grants all legislative power to, and vests it in, the Congress of the United States. The Constitution does not allow Congress to delegate those legislative powers to either of the other two branches of the federal government. This non-delegation doctrine is part of the principle of separation of powers between the executive, legislative and judicial branches of the government.

The Appeals Court ruled that Congressional delegations of authority are constitutional if Congress "lay[s] down by legislative act an intelligible principle to which the person or body authorized [to exercise the authority] is directed to conform." It is "constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of th[e] delegated authority."

Specifically, the Circuit Court determined the TCA established detailed regulatory frameworks for the FDA to follow and the TCA automatically applied to certain classes of products. That is, if the FDA determined that a product was made or derived from tobacco, then such a product could be deemed to be a tobacco product and therefore subject to FDA authority and applicable tobacco product regulations.

Based on this analysis, the U.S. Fifth Circuit Court of Appeals upheld the Federal District Court’s ruling that the TCA did not unconstitutionally delegate power to the Secretary of Health and Human Services and the FDA had the power to deem other tobacco products subject to the law’s mandates and regulations. 

As this case was decided by a three-judge panel, the plaintiffs could seek review by the entire Fifth Circuit Court of Appeals or could request review of the decision by the U.S. Supreme Court.

Thomas Briant is the executive director of NATO, a tobacco retailing association based in Lakeville, Minn. Reach him at

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