In Texas Tobacco Barn v. HHS, No. 25-60200 (5th Cir. June 30, 2026), a 2-1 panel holds that a manufacturer of vape products was entitled to a jury trial in an Article III court when the U.S. Department of Health and Human Services (HHS) pursued civil penalties against it for alleged violations of the Food, Drug, and Cosmetic Act (FDCA).
The Family Smoking Prevention and Tobacco Control Act (TCA) empowers the Food and Drug Administration to regulate “cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco” plus other things that the agency “deems” a “tobacco product[].” 21 U.S.C. § 387a(b). The FDA categorizes vaping as a tobacco product. The law prohibits the sale of any such product without the FDA’s approval.
“FDA enforces this prohibition in two ways: (1) by filing suit in federal district court to enjoin sales, id. § 332, or (2) by bringing an HHS proceeding to exact civil penalties, id. § 333(f)(5)(A), (f)(9). HHS proceedings lack juries,” although there is administrative review in the court of appeals.
HHS obtained a civil penalty in the amount of $19,192 against petitioner Texas Tobacco Barn (TTB) for the allegedly unauthorized sale of something called “Barn Brewed Beetle Juice.” HHS brought its action administratively, the second category. TTB objected that it was entitled to a jury trial under the Seventh Amendment. After TTB exhausted all levels of review, it petitioned the Fifth Circuit and renewed its Seventh Amendment objection.
The Fifth Circuit vacates the agency’s decision. After briefly dispensing with a nondelegation argument, the panel majority holds that the non-jury, administrative HHS proceeding violated the Seventh Amendment right of the respondent.
The parties and the panel agree that FDCA violations implicate jury rights. HHS argued, nevertheless, that “the public-rights exception allowed the matter to be adjudged by a juryless agency.”
The panel majority hold that the penalties here are not only in the form of monetary damages, which is presumptively legal relief, but they are analogous to a common law actions of trespass-on-the-case or “cheat,” in which juries could levy penalties for “unwholesome” or misleading commercial practices. “Just as the common law went after those selling unwholesome or adulterated products, today FDA decides whether vape products are adulterated, misbranded, or otherwise threaten public health.”
“While these common law actions are not ‘identical’ to the FDCA, they confronted the ‘same basic conduct’ as the modern statute: selling adulterated or misbranded consumables.”
The panel majority then addresses the public-rights exception, which applies to matters that were historically reserved to the executive or legislative branches. “Examples include revenue collection, foreign commerce, immigration, tariffs, tribal relations, public lands, public benefits, and patents.”
The panel majority holds that public-health regulation does not fall within this category. The Supreme Court “has never suggested that, merely by invoking ‘public health’ . . . Congress may sweep away Seventh Amendment rights—particularly with respect to civil monetary penalties that fall in the heartland of Article III . . . . To do so would blow a hole in what is meant to be a narrow exception to presumptive Article III jurisdiction.”
“In sum, the public rights exception does not apply here.”
In dissent, Judge Douglas reads the historical antecedents differently. “Here, the public rights exception applies because TTB points to no common law cause of action sufficiently analogous to this enforcement action . . . . Neither TTB nor the majority identifies a common law cause of action that is analogous to the offering of unauthorized tobacco products for sale like those at issue here. “
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