Supreme Court Reverses Chevron

It has been 40 years since SCOTUS initially ruled on Chevron v. Natural Resources Defense Council.

When a law is ambiguous, Chevron deference gave regulatory authorities the power to fill in the gaps, relying on their expertise. In the lower courts, when a company sues a regulatory body because it feels that its treatment by regulators violates the law, those cases can be challenging to win because the courts used Chevron to rule in the regulators' favor, to the detriment of small businesses.

Chevron was considered so crucial that some Senators base part of their decision on whether or not to vote for a potential Supreme Court judge on that judge’s views of Chevron.

The 1984 Chevron ruling allowed regulators to use their expertise to act quickly when needed or rely on that expertise when participating in the rule-making process.  

As in all things government, while some things work out the way they were intended, there are always instances where unintended consequences get in the way. Regulators can succumb to political pressures and personal biases just like members of Congress and judges can.

The Chevron debate has proponents and opponents of the ruling looking at two main points: Who should interpret an ambiguous law, the regulators or the courts? Is scientific and technical expertise more critical than legal expertise? 

For some, leaving it in the hands of regulators can be a problem if decisions don’t appear to be made based on science. 

Last week’s overruling of Chevron can also have unintended consequences, including slowing down the regulatory process, which in some cases already moves too slowly. It could force judges to rule on technical or scientific matters they do not fully understand. It could also increase polarization and regulatory uncertainty and cause more cases between industries and regulators to end up in court. 

The Tobacco Control Act is an example of an ambiguous law with many gaps the FDA has struggled to fill equitably. Small businesses manufacturing and selling vapor products have long felt that the FDA does not base its decisions on science and is abusing the power that Chevron gave them.

Many of those businesses cheered when Chevron was overruled. This ruling may motivate the FDA to continue its latest momentum toward authorizing more vapes to hit retailers' shelves. This certainly is an opportunity for the FDA to continue evaluating and improving the systems it has put in place so far. 

There is much speculation about the impact of last week’s ruling on the FDA’s Center for Tobacco Products. The decision was heralded by the American Vapor Manufacturers and the Vapor Technology Association, trade groups that represent many of the small and medium vapor businesses in the US.

The new ruling on CHEVRON leaves many wondering if it will help the disturbing number of vapor businesses closing due to burdensome regulations. Small manufacturers don’t have an obtainable pathway to being authorized by the FDA, leaving vape shops without any authorized e-liquids to sell.

However, some experts, like Mitch Zeller, Scott Gottlieb, and Cliff Douglas, are concerned that overruling Chevron will do more harm than good and will not yield the results that consumers and small vape businesses hope to see. The Consumer Advocates for Smokefree Alternatives Association share some of those same concerns. 

Over the years, the vapor industry has fought numerous legal battles against the FDA, with a mixed record of wins and losses. SCOTUS has been discussing the certiorari of four more cases (Wages and White Lion, Magellan Technology, Logic Technology, and Lotus Technology).

Today, we learned that the Wages and White Lion (Trition) case will be heard by the Supreme Court during its next session, which starts in October.

Eager eyes are turned toward the court. What happens in the Triton case can shape the industry's future, a future that is vitally important to people who want to turn to vaping as a means to stop smoking.