On January 28, 2020, WLF filed an amicus curiae brief urging the Fourth Circuit to vacate a trial-court order that amounted to a de facto administrative rulemaking. The FDA used a guidance paper to set a deadline by which e-cigarette companies must apply for permission to continue selling their products. A group of doctors and public-health groups attacked the guidance in court, arguing among other things that the new deadline should have undergone notice and comment. The trial court agreed with this argument and vacated the guidance. But rather than simply remand the matter to the agency, as the law usually requires, the trial court proceeded to set a new deadline—a very tight one—itself. WLF’s brief argues that the trial court—which reviews agency action only as an appellate tribunal—had no authority to set a new deadline.

Documents:

 WLF brief