The Volokh Conspiracy Mostly law professors | Sometimes contrarian | Often libertarian | Always independent En Banc Fifth Circuit Rejects FDA's Vaping Regulation "Surprise Switcheroo" Another significant court loss for the Food & Drug Administration's arbitrary approach to regulating vaping products. Today, the U.S. Court of Appeals for the Fifth Circuit issued its long-awaited en banc decision in Wages and White Lion Investments, L.L.C. v. Food & Drug Administration, in which it considered a challenge to the FDA's denial of vaping product applications. By a vote of 10-6, the court handed the FDA a substantial loss, and deepened the circuit split over the FDA's handling of vaping product app... [Read more]