US: DC Court Upholds FDA Decision to Regulate E-Cigs as Tobacco Products

Source from:  Vapingpost 12/07/2020

Represented by the Pacific Legal Foundation, a conservative legal group, Michigan-based e-liquid manufacturer Moose Jooce, argued that the FDA’s then-associate commissioner for policy Leslie Kux, who issued the 2016 rule deeming e-cigarettes to be tobacco products, lacked the authority to do so because she was a career employee, not a principal officer appointed by the president.

The FDA countered that while the authority had been delegated to Kux by the agency’s commissioner, it did not even matter since the regulation was ultimately ratified by two different FDA commissioners, most recently FDA Commissioner Scott Gottlieb in April 2019.

The appeals court said that the deeming rule is constitutional

The judge agreed that Gottlieb should have conducted a new review before ratifying the rule, however, she added, there was no evidence that he had not.Ruling in favour of the FDA, a unanimous panel of the D.C. Circuit U.S. Court of Appeals, said that the regulation did not run afoul of the Constitution’s Appointments Clause because the FDA official who promulgated it was not appointed by the president and confirmed by the Senate.

“The Appointments Clause is an essential constitutional protection for democratic oversight and accountability,” he said. “Yet the court’s decision all but assures that agencies will suffer no consequences when they violate this clause.”