Vaping in the Shadow Docket
On November 12, the U.S. Court of Appeals for the Sixth Circuit rejected an electronic cigarette manufacturer’s application of a stay of the Food and Drug Administration’s order rejecting its application seeking approval of some of its vaping products. Now that e-cigarette company, Breeze Smoke, has filed an emergency application for a stay with Justice Kavanaugh.
As Breeze Smoke’s application points out, the Sixth Circuit’s decision conflicts with one from the U.S. Court of Appeals for the Fifth Circuit, which granted a similar stay application to another manufacturer of vaping products (often called electronic nicotine delivery systems or “ENDS”), and harshly criticized the FDA’s arbitrary and inconsistent decision-making. Indeed, the Sixth Circuit acknowledged that it disagreed with the Fifth Circuit’s assessment of the FDA’s conduct.
While it is possible that there are substantive differences between the relevant product applications, the FDA did not engage in the sort of review expected of a regulatory agency. (Indeed, the Sixth Circuit faulted the FDA, but just did not find the deficiencies to be great enough to justify a stay.) Thus, Breeze Smoke is abl
Article from Reason.com