WASHINGTON – Vaping is coming before the Supreme Court next week as federal regulators ask the high court to uphold its block on sweet, flavored products following a spike in youth e-cigarette use.
The Food and Drug Administration has denied more than a million marketing applications for candy- or fruit-flavored products that appeal to kids, part of a wider crackdown that advocates say helped drive down teen vaping after an “epidemic level” surge in 2019.
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Vaping companies, though, said the agency unfairly disregarded arguments that their sweet e-liquid products would help adults quit smoking traditional cigarettes without putting kids at greater risk.
Republican Donald Trump's administration could take a different approach after he vowed in a September social-media post to “save” vaping.
The Supreme Court on Monday is hearing arguments in the FDA’s appeal of a decision from the conservative 5th U.S. Circuit Court of Appeals. While other courts upheld FDA refusals, the appeals court sided with the Dallas-based company Triton Distribution.
It tossed out a decision blocking the marketing of nicotine-laced liquids like “Jimmy The Juice Man in Peachy Strawberry" that are heated by an e-cigarette to create an inhalable aerosol.
Triton said the FDA had unfairly changed its requirements without enough warning.
“It sort of pulls the chair out from the applicants,” said Marc Scheineson, a former FDA associate commissioner and attorney who now represents other small electronic tobacco companies.
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 has approved some tobacco-flavored vapes, and recently allowed its first menthol-flavored electronic cigarettes for adult smokers.
The marketing refusals combined with age-limit enforcement on the federal and state levels have helped drive down youth nicotine use to its lowest level 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 requirements and fears a court decision that leads to wider availability for flavored vape products, which are the dominant choice among the 1.6 million high school students who still vape. “We think that would be a real harm to public health,” Henigan said.