On January 30, 2018, three separate challenges to the Deeming Regulations were filed by vapor-industry plaintiffs represented by the Pacific Legal Foundation (“PLF”), each raising issues under the Appointments Clause and the First Amendment of the U.S. Constitution:

  • Moose Jooce, et al. v. Food & Drug Admin., et al., No. 1:18-cv-203 (D.D.C.);
  • Rave Salon, Inc. v. Gottlieb, et al., No. 3:18-cv-237 (N.D. Tex.); and
  • Hoban, et al. v. Food & Drug Admin., et al., No. 0:18-cv-269 (D. Minn.).

When PLF announced the filings, it characterized “[t]hese three simultaneously filed lawsuits” as an “opening salvo.” Will the FDA be able to outmaneuver the three-pronged attack?

The FDA’s motions to transfer are pending in Rave Salon and Hoban, having been filed on April 27 and April 13, respectively. The motions are premised on stated interests in “prevent[ing] the unnecessary expenditure of judicial resources, avoid[ing] wasteful and duplicative litigation, and avert[ing] the possibility of inconsistent judgments.”

In other words, through some procedural maneuvering, the FDA hopes to transfer Rave Salon and Hoban to the U.S. District Court for the District of Columbia, where all three cases may be heard at once. If the FDA’s motions are granted, this would save the FDA from having to litigate the same issues on three fronts. This could also undermine any attempt on PLF’s part to relitigate (albeit, with different plaintiffs and in different courts) the First Amendment issues now on appeal before the U.S. Court of Appeals for the D.C. Circuit in Nicopure Labs LLC, et al. v. FDA, et al., No. 17-5196 (D.C. Cir.).

It will be interesting to see how these motions are resolved. Obviously, the FDA’s motions (if granted) could compromise PLF’s strategy in launching the tripartite “salvo.” More broadly, it is notable that the FDA has pursued the same strategy of transfer and consolidation with respect to separate cigar industry challenges to the Deeming Regulations, where a decision on the motion to transfer also remains pending. Finally, it is not too soon to observe that funneling the cases to the D.C. Circuit would dim the prospect of a circuit split on the issues in the vapor challenges – a potential justification for Supreme Court review. See Sup. Ct. R. 10(a).

We will monitor for further updates.