Following its appeal to the U.S. Court of Appeals for the Sixth Circuit, Vapor Stockroom LLC (the “Appellant”) has filed a motion for injunction pending the decision on the merits or, alternatively, for the expedition of briefing, oral argument, and decision of its appeal.

In the Appellant’s words, “The impetus for the present motion . . . is that if this Court fails to grant injunctive relief . . . by May 12, 2020, FDA has threatened industry-wide enforcement action after that date that would require [Appellant] to shutter its business.”

The Appellant presents the merits question as follows: “whether the district court erred in dismissing [its] complaint for lack of Article III standing by finding that FDA’s superfluous suggestion to another district court that a twenty-seven month acceleration of the deadline to file premarket tobacco applications would be appropriate was not a ‘motivating factor’ in that district court’s setting exactly the deadline proposed by FDA where the other district court explicitly stated that FDA had ‘set the timetable in the first instance’ and that the court was adopting the ten-month deadline FDA had ‘suggested’ and ‘wisely . . . proposed.’”

It awaits to be seen how the Sixth Circuit resolves these issues. Meanwhile, the U.S. Court of Appeals for the Fourth Circuit has before it a challenge to the new filing deadline of May 12. That appeal is being considered on an expedited basis, and oral argument will be held on March 18.

Stay tuned for further developments.