The Supreme Court ruled inFDA v. R.J. Reynolds Vapor Company on June 20, 2025, that vape companies can challenge marketing denial orders for vapes in courts outside the regions where they are based. R. J. Reynolds Vapor Co., manufacturers of Vuse Alto vapes and a major player in the vape space, won the case against the FDA by filing in the U.S. Court of Appeals for the Fifth Circuit (Louisiana, Mississippi, and Texas) even though they in the Fourth Circuit (Maryland, North Carolina, South Carolina, Virginia, and West Virginia) after receiving marketing denials for their berry and menthol-flavored e-cigarettes. 

R. J. Vapor Co. may have wanted to avoid the Fourth Circuit as this court has a history of siding with the FDA on marketing denials like the case of Avail Vapor, LLC v. FDA (Dec 2022), when the Supreme Court sided with the FDA after Avail sued them for refusing to allow them to sell their flavored vapes due to lack of evidence.

The Fifth Circuit, on the other hand, is thought of as a court that can be hostile towards government agencies, even though the court ultimately backed the FDA’s decision in previous similar cases likeWages and White Lion v. FDA. 

The Family Smoking Prevention and Tobacco Control Act (TCA), signed into law in 2009, allows the FDA to regulate tobacco products from manufacturing to marketing and distribution.

The TCA requires vape manufacturers to “apply for and receive approval from the Food and Drug Administration (FDA) before marketing any “new tobacco product.” The act aims to protect public health overall but focuses specifically on tobacco products that target minors with advertisements and desirable flavors.

According to a2023 study, “flavors in nicotine and cannabis vape products increased adolescents’ willingness to try them. Comprehensive bans on flavored vapes would likely reduce adolescent use.”

While this ruling may seem like a win for tobacco companies, it doesn’t question the FDA’s decision to deny marketing authorization for flavored vapes. Instead, it allows companies to choose the judicial venue for appeals. So far, the Supreme Court has ruled in favor of the FDA in every appeal brought to them following the marketing denial, which may mean it doesn’t matter where the vape companies take the case.