On May 4, 2020, the Fourth Circuit dismissed as moot an appeal challenging 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 argued that the trial court—which reviews agency action only as an appellate tribunal—had no authority to set a new deadline. In the meantime, however, the FDA issued yet another guidance, one that adopted the trial court’s new deadline as its own. The Fourth Circuit concluded that the new guidance displaced the old one, and that a challenge to the new guidance could not be presented in this case.


 WLF brief