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5th Circuit Affirms Dismissal of Challenge to Congress’s Delegation of Smoking Regulations

A man exhales steam from his electronic cigarette

A bearded man in the clouds of steam from electronic cigarette closeup. vaping man

On Thursday, a panel of Fifth Circuit Judges affirmed a decision from the Southern District of Mississippi, which dismissed a case that attempted to challenge Congress’s power to delegate regulation of smoking products to the Secretary of Health and Human Services (HHS) under The Family Smoking Prevention and Tobacco Control Act (TCA). 

Plaintiff-Appellants, Big Time Vapes, Inc. and United States Vaping Association, Inc. originally sued the Food and Drug Administration (FDA) and Alex M. Azar, Secretary of HHS, asserting that Congress’s delegation to the Secretary was unconstitutional.  Big Time Vapes and the US Vaping Association were seeking a declaratory judgment to stop the FBA and HHS from enforcing the TCA against them and declare Section 901 of the TCA in violation of Article I of the Constitution.

Under Section 901 of the TCA, Congress authorized the Secretary to determine which other products should be governed by the TCA’s regulatory scheme.  Cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco are automatically subject to the Act.  The appeal was purely a legal question of whether section 901’s delegation to the secretary violates the nondelegation doctrine.

Following past precedent on the nondelegation doctrine, the court stated, “Delegations are constitutional so long as Congress “lay[s] down by legislative act an intelligible principle to which the person or body authorized [to exercise the authority] is directed to conform.”  J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).”  In their analysis, the circuit judges they disagreed with the appellant’s argument that the TCA “didn’t provide ‘any parameters or guidance whatsoever’ to guide the Secretary’s exercise of that discretion,” which would violate the nondelegation doctrine. 

First, the appeals court held that “Congress undeniably delineated its general policy in the TCA.”  They rejected appellants argument that the TCA’s purposes were “various and diverse,” citing in support that the section of the TCA covering this is titled “PURPOSE.”  Second, the court held Congress “plainly limited the authority that it delegated.”  The court reasoned Congress enacted a controlling definition of “tobacco product” so the secretary’s power was restricted to only products meeting that description.  Furthermore, Congress also restricted the secretary by “making many of the key regulatory decisions itself.”  Topping off their analysis, the court said “The relevant caselaw drives those conclusions home.”

The appeals court made note that the court might decide to “perhaps soon” reexamine or revive the nondelegation doctrine, but this case was not it.

The plaintiff-appellants were represented by Najvar Law Firm.  Circuit Judges Smith, Higginson, and Engelhardt heard the appeal, and Circuit Judge Jerry E. Smith delivered the opinion.

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