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United States Court of Appeals, Fifth Circuit.

WAGES AND WHITE LION INVESTMENTS, L.L.C., doing business as Triton Distribution, Petitioner, v. FOOD & DRUG ADMINISTRATION, Respondent,

Wages and White Lion Investments, L.L.C., doing business as Triton Distribution; Vapetasia, L.L.C., Petitioners, v. Food & Drug Administration, Respondent.

No. 21-60766

Decided: January 19, 2023

Before Richman, Chief Judge, and Jones, Smith, Stewart, Elrod, Southwick, Haynes, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, and Douglas, Circuit Judges. Eric Heyer, Joseph Andrew Smith, Thompson Hine, L.L.P., Washington, DC, Anthony J. Hornbach, Esq., Thompson Hine, L.L.P., Cincinnati, OH, for Petitioner Wages and White Lion Investments, L.L.C., doing business as Triton Distribution. Eric Heyer, Thompson Hine, L.L.P., Washington, DC, for Petitioner Vapetasia, L.L.C. Lindsey E. Powell, Esq., U.S. Department of Justice, Washington, DC, Noah T. Katzen, Hilary Keith Perkins, Esq., U.S. Department of Justice, Civil Division, Washington, DC, Alisa Beth Klein, Esq., Courtney Dixon, U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, Mark Raza, Chief Counsel, Wendy S. Vicente, U.S. Food and Drug Administration, Food and Drug Division, OGC, Silver Spring, MD, for Respondent. Leane K. Capps, Esq., Polsinelli, P.C., Dallas, TX, for Amici Curiae American Academy of Pediatrics, American Cancer Society Cancer Action Network, American Heart Association, American Lung Association, Campaign for Tobacco-Free Kids, Parents Against Vaping e-cigarettes, Truth Initiative Foundation, doing business as Truth Initiative. J. Gregory Troutman, Troutman Law Office, P.L.L.C., Louisville, KY, for Amici Curiae American Vaping Association, Incorporated, American Vapor Manufacturers Association, Incorporated, Consumer Advocates for Smoke-Free Alternatives Association, Incorporated, Smoke-Free Alternatives Trade Association, Incorporated, United Vapers Alliance, Incorporated, 38 National and State ENDS Product Advocacy Associations. Mary G. Bielaska, Zanicorn Legal, P.L.L.C., New York, NY, Michael D. Matthews, Jr., McDowell Hetherington, L.L.P., Houston, TX, for Amici Curiae David B. Abrams, Clive D. Bates, David T. Sweanor, J.D. Anthony Abboud, Northbrook, IL, for Amicus Curiae Vapor Technology Association.


A member of the court having requested a poll on the petition for rehearing en banc, and a majority of the circuit judges in regular active service and not disqualified having voted in favor,

IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs. Pursuant to 5th Circuit Rule 41.3, the panel opinion in this case dated July 18, 2022, is VACATED.

Per Curiam:

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