Regulators cracked down on sweet vapes after use by kids spiked. Now the Supreme Court is wading in.

WASHINGTON — Vaping is headed to the Supreme Court next week as federal regulators ask the Supreme Court to uphold the ban on sweet, flavored products after a spike in e-cigarette use among young people.

The Food and Drug Administration has rejected more than a million marketing applications for candy- or fruit-flavored products that appeal to children, part of a broader crackdown that advocates say has helped drive down teen vaping after peaking at “epidemic levels” in 2019.

However, vaping companies said the agency wrongly ignored arguments that their sweet e-liquid products would help adults quit smoking traditional cigarettes without putting children at greater risk.

Republican Donald Trump’s administration may be taking a different approach after he vowed to “save” vaping in a social media post in September.

The Supreme Court will hear arguments Monday in the FDA’s appeal of a decision by the conservative 5th U.S. Circuit Court of Appeals. While other courts upheld the FDA’s denials, the appeals court sided with Dallas-based company Triton Distribution.

It has made a decision blocking the marketing of nicotine-containing liquids such as “Jimmy The Juice Man in Peachy Strawberry,” which are heated by an e-cigarette to create an inhalable aerosol.

Triton said the FDA unfairly changed its requirements without sufficient warning.

“It kind of pulls the chair away from the applicants,” said Marc Scheineson, a former FDA deputy commissioner and attorney who now represents other small e-tobacco companies.

The FDA was slow to regulate the now multi-billion dollar vaping market, and even years after the crackdown, flavored vapes that are technically illegal remain widely available. The agency has approved a number of tobacco-flavored vapes and recently approved the first menthol-flavored version electronic cigarettes for adult smokers.

The marketing denials combined with enforcement of federal and state age limits have helped push nicotine use among young people to the lowest levels in a decade, said Dennis Henigan, vice president for legal and regulatory affairs at the Campaign for Tobacco-Free Kids.

He says the FDA was clear in its demands and fears a court decision that will lead to greater availability of flavored vape products, which are the dominant choice among the 1.6 million high school students who still vape. “We think this would be a real harm to public health,” Henigan said.