Supreme Court to weigh whether regulators were heavy handed with flavored e-cigarette products
WASHINGTON — The Supreme Court on Tuesday heard a case about e-cigarettes, weighing whether the Food and Drug Administration wrongly blocked the marketing of sweet-flavored products as young people increasingly turn to vaping.
E-cigarette companies allege the FDA wrongly rejected more than a million applications to market a fruit- or candy-flavored nicotine-containing liquid that is heated by the e-cigarette to create an inhalable aerosol.
The case comes as the FDA is conducting a sweeping review after years of regulatory delays aimed at scientifically examining the multibillion-dollar vaping market, which includes thousands of flavored vapes that are technically illegal but widely available in convenience stores, gas stations and vape shops. The FDA recently approved its first menthol-flavored electronic cigarettes for adult smokers.
The agency says the sweetened e-liquids pose a “serious, well-documented risk” of driving more young people toward nicotine addiction. In 2020, nearly 20% of high school students and nearly 5% of middle school students used e-cigarettes, and nearly all of those kids used flavored products, the agency said in court documents.
The agency says companies were blocked because they could not show that the potential benefits to adult smokers outweighed the risks of underage use. The companies say they had detailed plans in place to avoid targeting young people.
The companies scored a victory when the U.S. 5th Circuit Court of Appeals sided with the vaping companies and overturned injunctions that blocked the marketing of e-liquids with names like “Jimmy The Juice Man in Peachy Strawberry.”
The 5th Circuit held that the agency acted unfairly because it required companies without warning to produce studies showing that flavored products would help people quit smoking.
The FDA appealed that finding to the Supreme Court, and the justices expect to hear the case in the fall.
Other appeals courts sided with the FDA, which regulates new tobacco products under a 2009 law aimed at reducing youth tobacco use.
Vaping companies have long claimed that their products can help reduce the toll of smokingwhich is responsible for 480,000 deaths each year in the US from cancer, lung disease and heart disease.
Vaping among youth has declined from record highs in recent years, but about 10% of high school students reported still using e-cigarettes last year.