On February 15, 2020, Plaintiff Vapor Stockroom LLC filed a notice of appeal in Vapor Technology Association v. FDA, No. 5:19-cv-00330-KKC (E.D. Ky.). Vapor Stockroom is appealing the district court’s order granting the FDA’s motion to dismiss and denying their motion for preliminary injunction. The Plaintiffs alleged that, in requiring the submission of premarket tobacco applications by May 12, 2020, the FDA violated the Administrative Procedure Act, 5 U.S.C. § 500, et seq., and the Due Process Clause of the Fifth Amendment to the Constitution. As previously reported in this blog, the district court dismissed the case for lack of jurisdiction and accordingly denied the motion for preliminary injunction. The appeal will be heard in the U.S. Court of Appeals for the Sixth Circuit.

In addition to this case, there is a pending appeal with the U.S. Court of Appeals for the Fourth Circuit concerning lawfulness of the FDA’s 2017 guidance and the new filing deadline of May 12. The Fourth Circuit case is being considered on an expedited basis.

Stay tuned for further developments.