The CMP Plot Thickens: Solicitor General Letter Casts FDA’s Tobacco Civil Money Penalty Scheme into Further Doubt August 27, 2026 By Peter G. Dickos & JP Ellison —

https://www.thefdalawblog.com/2026/08/the-cmp-plot-thickens-solicitor-general-letter-casts-fdas-tobacco-civil-money-penalty-scheme-into-further-doubt/?utm_source=rss&utm_medium=rss&utm_campaign=the-cmp-plot-thickens-solicitor-general-letter-casts-fdas-tobacco-civil-money-penalty-scheme-into-further-doubt For the first time, the Department of Justice has backed off its prior vigorous defense of FDA’s tobacco product administrative Civil Money Penalty (CMP) scheme as constitutional under the 7th Amendment and Jarkesy. Earlier this week, the Solicitor General sent a letter to Congress saying that it will not seek cert to the Supreme Court from the 5th Circuit’s adverse Texas Tobacco Barn decision finding the CMP there (for sales of unauthorized e-cigarettes) unconstitutional. The big part is the why: because “the Fifth Circuit correctly rejected certain arguments emphasized by the government in this case,” namely, that “interstate commerce” and “public health” were sufficient justifications to overcome/exceptions around the 7th Amendment jury trial right recognized in Jarkesy.