Last week, the 5th district circuit court issued an “en banc” (meaning a decision from the entire panel of judges servings on the 5th circuit) decision that rule FDA was arbitrary and capricious when it issued a marketing denial order preventing Triton Distributor from making and selling flavored e-cigarette liquids.
Federal courts across the country have heard similar challenges to FDA’s issuing marketing denial orders preventing flavored e-cigarette products from remaining on the U.S. In these other cases, the majority of federal courts have upheld FDA’s review process and authority to issue marketing denial orders. With conflicting rulings coming from the federal courts, it is likely the U.S. Supreme Court will be asking consider FDA’s authority of reviewing tobacco products.