Supreme Court doesn't seem convinced FDA was unfair in blocking flavored
vapes teen use increased
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[December 03, 2024]
By LINDSAY WHITEHURST
WASHINGTON (AP) — A majority of Supreme Court justices didn't seem
convinced Monday that federal regulators misled companies before
refusing to allow them to sell sweet-flavored vaping products following
a surge in teen e-cigarette use.
The conservative-majority court did raise questions about the Food and
Drug Administration crackdown that included denials of more than a
million nicotine products formulated to taste like fruit, dessert or
candy. Teen vaping use has since dropped to its lowest level in a
decade, but the agency could change its approach after the inauguration
next month of President-elect Donald Trump, who has promised to “save”
vaping.
Vaping companies have long marketed their products as a way to help
adults quit traditional cigarettes, and say the FDA changed its
standards with little warning as it blocked the sale of over a million
new flavored products.
Justice Elena Kagan, though, was skeptical.
“I guess I’m not really seeing what the surprise is here,” she said.
“You knew what the FDA’s point of view was ... that blueberry vapes are
really problematic in terms of youth smoking."

The FDA was slow to regulate the now multibillion-dollar vaping market,
and even years into the crackdown flavored vapes that are technically
illegal nevertheless remain widely available.
The agency says the companies were denied because they couldn't show
flavored vapes had a net public benefit, as laid out in the law. It has
approved some tobacco-flavored vapes, and recently allowed its first
menthol-flavored electronic cigarettes for adult smokers after the
company provided data showing the product was more helpful in quitting,
Deputy Solicitor General Curtis Gannon said.
The issue came before the high court when the agency appealed a decision
from the conservative 5th Circuit Court of Appeals tossing out one of
its denials.
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The Supreme Court is seen in Washington, Nov. 2, 2024. (AP Photo/J.
Scott Applewhite, File)
 While other lower courts rebuffed
vaping company lawsuits, the 5th Circuit sided with Dallas-based
company Triton Distribution. The decision allowed the sale of
e-juices like “Jimmy The Juice Man in Peachy Strawberry" and
“Suicide Bunny Mother's Milk and Cookies” which are heated by an
e-cigarette to create an inhalable aerosol.
Justice Neil Gorsuch questioned whether the FDA process had given
the companies a fair chance to make their claims, given that their
businesses were at stake.
Conservative Justice Brett Kavanaugh expressed concern about what
recourse companies have if agencies issue misleading guidance,
though he also elicited that the FDA wasn't required to issue the
guidance it gave in the vaping case. “I'm trying to figure out what
the legal error is here,” he said.
The vaping companies, he said, can reapply for sales authorization
even if they don't win in court. Triton attorney Eric Heyer said
that process would take so long that the company could be forced to
close.
The court has overall been skeptical of the power of federal
regulators, including by striking down the so-called Chevron
doctrine that had judges deferring to agencies' interpretation of
the law.
Justice Amy Coney Barrett questioned whether the vaping companies
wanted the court to take that concept a step further. “It’s almost a
reverse Chevron deference, except we're deferring to the applicant,"
she said.
The court is expected to decide the case in the coming months.
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