The US Supreme Court was skeptical of government arguments that it should curb where e-cigarette manufacturers can sue in order cut back on forum shopping.

The statute at the heart of arguments on Tuesday limits where tobacco companies can challenge Food and Drug Administration denial of an application to sell their products. The US Court of Appeals for the Fifth Circuit is the only circuit to side with manufacturers doing so, leading to what Justice Department attorney Vivek Suri called “quite remarkable” forum shopping.

The case is one of two this term in which the justices are asked to cut back on forum shopping out of the New Orleans-based Fifth Circuit. That court has become the go-to venue for industry groups and conservatives seeking judges who might see things their way on federal policies and social issues.

The Supreme Court in recent terms has pushed back on some of the Fifth Circuit’s most conservative holdings. This term, cases from that circuit make up more than 20% of the court’s docket.

The Family Smoking Prevention and Tobacco Control Act says “any person adversely affected” by a denial can challenge it in their home circuit or the D.C. Circuit, which has an expertise in administrative law.

The question for the justices is whether retailers are “adversely affected” to the point that they can sue alongside manufacturers, allowing industry to bring cases outside their home circuit.

RJ Reynolds Vapor Co. is a North Carolina company that’s home circuit is the Richmond-based Fourth. Instead of suing there to challenge FDA denial of its application to market e-cigarettes, the company sued in the Fifth Circuit. It added retailers who were “at home” in the circuit to justify bringing it there.

The appeals court sided with RJ Reynolds, reading the statute broadly to allow the case to continue there.

Now, almost all the challenges to such FDA denials are brought in the Fifth Circuit, Suri said.

Several justices suggested that the plain language of the statute includes retailers because they are adversely affected by the denial.

Retailers are losing money by not being allowed to sell these products, Justice Brett Kavanaugh said. “That sounds like adversely affected,” Kavanaugh said.

Suri said retailers weren’t harmed by the FDA’s denial of a new product, stressing they’re just “bystanders” at that point.

“I think it’s a bit much to call them bystanders,” Chief Justice John Roberts said, noting that selling these products was the whole point of their business.

But Justice Ketanji Brown Jackson said retailers don’t really have an interest in selling the products until the FDA approves them. Only then is their skin “really in the game,” she said.

Yet all parties agree that retailers couldn’t sue to challenge FDA withdrawal of approval. That provides a “clue” that Congress wasn’t thinking about retailers when they wrote the statute, Jackson said.

That’s the part that “really bugs me,” Jackson said.

The case is Food and Drug Administration v. R.J. Reynolds Vapor Co., U.S., No. 23-1187, argued 1/21/25.