Vaping companies hope they’ll find a friendlier regulatory environment from the Trump administration.
Supreme Court to decide if the FDA can ban the sale of flavored vapes
The Supreme Court will rule whether the Food and Drug Administration has the authority to ban the sale of flavored vapes.
WASHINGTON − The Supreme Court on Wednesday unanimously overturned a lower court’s decision that the Food and Drug Administration incorrectly blocked companies from selling fruit and candy flavored vaping products.
The court rejected the conclusion that the FDA didn’t adequately evaluate the companies’ marketing requests.
The decision is a boost for the FDA and for public health groups concerned about the appeal of sweet-flavored e-cigarettes to teens.
But vaping companies hope they’ll find a friendlier regulatory environment under the Trump administration. President Donald Trump has promised to “save” flavored vaping.
Under the Biden administration, the FDA had rejected more than a million products with flavors like “Jimmy the Juice Man Peachy Strawberry” and “Suicide Bunny Mother’s Milk and Cookies.”
The agency said companies failed to show that flavored vapes will do more to benefit public health by helping smokers quit tobacco products than the harm they cause by appealing to young people.
By 2015, e-cigarettes had taken over traditional cigarettes as the nicotine product of choice for U.S. high school students, according to the Center for Disease Control and Prevention’s National Youth Tobacco Survey.
When the surgeon general, in 2018, declared teen vaping an epidemic, one in five high school students reported having used e-cigarettes. Usage was increasing faster than for any previous substance.
In 2019, Trump signed legislation raising the federal minimum age for sale of tobacco products from 18 to 21 years.
But he also weakened a plan to crack down on flavored e-cigarettes, allowing exceptions that benefited manufactures, retailers and adults.
Public health groups had already sued the FDA for not moving fast enough to review the products after the agency, in 2016, finalized rules for regulating them under the 2009 Family Smoking Prevention and Tobacco Control Act.
The only vaping products the FDA has since approved are tobacco or menthol flavored, which the agency says are less appealing to teens and adolescents.
The e-cigarette industry has charged the FDA with unfairly blocking the marketing of most flavored products.
Seven federal appeals courts rejected that argument. But the New Orleans-based 5th U.S. Circuit Court of Appeals − arguably the most conservative federal appeals court − sided with two companies, Triton Distribution and Vapetasia LLC.
After the companies “spent untold millions” to comply with the approval process, the appeals court said, the FDA “imposed new testing requirements without any notice.”
The court also faulted the FDA for dismissing out-of-hand companies’ strategies to keep their products away from minors. The agency said such efforts haven’t proven to be effective.
The FDA contends it correctly applied the Tobacco Control Act, which says the agency must consider both the “likelihood that existing users of tobacco products will stop using such products” and the “likelihood that those who do not use tobacco products will start using such products.”
E-cigarettes, which were developed in China, began appearing in the U.S. market in the mid-2000s. The battery-operated devices heat a liquid containing nicotine into aerosol that the user inhales.
The case is FDA v. Wages and White Lion Investments LLC.