RegWatch by RegulatorWatch.com
Jun 30, 2026 · 32 min · 11 segments
After years of lawsuits, court rulings, and regulatory setbacks, the U.S. vaping industry remains locked in battle with the FDA. In this episode of RegWatch, attorney Greg Troutman breaks down the…
Greg TroutmanGuest
Brent StaffordHost
Greg, we last had you on the show the day the U.S. Supreme Court heard oral arguments in the Wages and White Lion case.
Briefly remind our viewers how the case made it to the Supreme Court, then walk us through the court's ruling and what it means for the U.S. vaping industry.
Triton case, the wages and white line case, made its way to the Supreme Court, Brent, because the Fifth Circuit en banc panel, that is the entire Fifth Circuit, a vote of 10 to 6, ruled in favor of the industry and ruled that FDA had failed to give proper notice of its comparative efficacy requirement.
The Fifth Circuit did allude to in a footnote that it believed that FDA had imposed a de facto ban which bypassed the Administrative Procedure Act rulemaking process and the APA and the TCA's rulemaking process.
And so it's ruling against the industry, which was unanimous, that FDA did give fair notice and the industry should have been on notice that comparative efficacy was required or some heightened evidentiary standard was required, was within bounds, and that we did not prevail on that issue.
It sent the case back to the Fifth Circuit to be re-heard, which that happened about two weeks ago, on the other remaining issues.
There have since been two other cases that have been argued in the Fifth Circuit, VDX Distro, which was my case, and Nickwood, which was Keller Heckman's case, and it was Nickwood and several other companies were argued back at the end of April.
I got the decision yesterday, was not favorable, which was very disappointing.
And the court ruled that the court ruled that essentially the Supreme Court decision foreclosed the product standard argument that we made and that FDA is free to adopt a product standard, a comparative efficacy standard under its PMT adjudications, not having to go through a formal rulemaking process.
Greg, we last had you on the show the day the U.S. Supreme Court heard oral arguments in the Wages and White Lion case.
Briefly remind our viewers how the case made it to the Supreme Court, then walk us through the court's ruling and what it means for the U.S. vaping industry.
Triton case, the wages and white line case, made its way to the Supreme Court, Brent, because the Fifth Circuit en banc panel, that is the entire Fifth Circuit, a vote of 10 to 6, ruled in favor of the industry and ruled that FDA had failed to give proper notice of its comparative efficacy requirement.
The Fifth Circuit did allude to in a footnote that it believed that FDA had imposed a de facto ban which bypassed the Administrative Procedure Act rulemaking process and the APA and the TCA's rulemaking process.
And so it's ruling against the industry, which was unanimous, that FDA did give fair notice and the industry should have been on notice that comparative efficacy was required or some heightened evidentiary standard was required, was within bounds, and that we did not prevail on that issue.
It sent the case back to the Fifth Circuit to be re-heard, which that happened about two weeks ago, on the other remaining issues.
There have since been two other cases that have been argued in the Fifth Circuit, VDX Distro, which was my case, and Nickwood, which was Keller Heckman's case, and it was Nickwood and several other companies were argued back at the end of April.
I got the decision yesterday, was not favorable, which was very disappointing.
And the court ruled that the court ruled that essentially the Supreme Court decision foreclosed the product standard argument that we made and that FDA is free to adopt a product standard, a comparative efficacy standard under its PMT adjudications, not having to go through a formal rulemaking process.
The rest of this transcript — segmented and speaker-labeled, so you land on the exact moment something was said
Search every transcript — by keyword, by phrase, or by meaning, across every show Radar indexes
Trends — what is surging across podcasts, measured against its own baseline
Alerts — when a name you follow appears in a newly indexed episode
No account is needed to search Radar.