Fifth Circuit Grants Triton a Rehearing of MDO Appeal

Jan. 19, 2023—updated Jan. 20

The Fifth Circuit Court of Appeals has granted Triton Distribution’s petition for a rehearing of its appeal of the FDA’s marketing denial orders (MDOs) issued for Triton’s (and sister company Vapetasia’s) flavored e-liquids. The original Fifth Circuit three-judge panel ruled 2-1 last July to deny Triton’s appeal.

The decision to grant an en banc rehearing of the case means the original decision against Triton and Vapetasia is vacated, and the case will be decided by a panel of all active Fifth Circuit judges.

After the July decision, Triton petitioned the court for both panel and en banc rehearings of the case. (A panel rehearing would mean a redo of the first hearing with the same three judges.) A majority of the court’s judges voted to grant an en banc rehearing.

Getting a second bite at the legal apple after a negative panel decision, as Triton has, is a rarity, but even moreso because the court granted a rehearing en banc. In 2010, for example, there were only 44 cases decided en banc—among all the decisions in all 12 U.S. circuit courts of appeals. That was just 0.14% of all the appeals in the country that were resolved on the merits that year.

The court has asked for briefs from Triton by Feb. 22, according to Triton attorney Eric Heyer. FDA's response is due by March 24, and oral argument is scheduled for the week of May 15. Triton will now be able to introduce information for the court to assess that was not available to the first panel, including details of previously unknown FDA documents and internal deliberations.

Before the three-judge panel ruled 2-1 against Triton in July 2022, another three-judge panel on the same court had unanimously stayed Triton’s MDO in October 2021, calling the FDA’s imposition of new evidentiary standards for vape industry applicants a “surprise switcheroo,” and ruling that the Triton appeal was likely to succeed on its merits. That means we know at least four Fifth Circuit judges (three that stayed the MDO and one that dissented in the merits decision) are likely to decide in Triton's favor. (Also, at least nine of the court's 16 active judges voted to grant the en banc rehearing.)

Texas-based Wages and White Lion Investments LLC, which does business under the name Triton Distribution, manufactures e-liquid under its own brand names and under contract for other manufacturers. Among the brands included in Triton’s MDO were Suicide Bunny, Boiler Maker, Vape Hooligan, Chewy Clouds, and Teleos.