E-cigarette makers hope Supreme Court will give Trump a chance to greenlight flavored vapes
Vaping companies argued the current FDA unfairly denied marketing applications for products like “Killer Kustard,” and “Iced Pineapple Express."
WASHINGTON − Makers of e-cigarettes tried to persuade the Supreme Court on Monday to order a new evaluation of their vaping products in hopes the incoming Trump administration will reverse restrictions on flavors like “Jimmy the Juice Man Peachy Strawberry” and “Suicide Bunny Mother's Milk and Cookies.”
“We have a new administration coming in,” Eric Heyer, an attorney representing two vaping companies told the justices. “The president-elect is on record saying, `I’m going to save flavored vapes.’”
Under the Biden administration, the Food and Drug Administration has rejected more than a million products flavored to taste like fruit, candy or desserts.
The agency says companies have 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.
“They just didn’t have sufficient scientific evidence to bear out their claim that non-tobacco flavors are `crucial to getting adult smokers to make the switch,'” said Curtis Gannon, a lawyer for the Justice Department.
The only vaping products the FDA has 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.
While seven federal appeals courts rejected that argument, the New Orleans-based 5th U.S. Circuit Court of Appeals said the FDA sent manufacturers "on a wild goose chase."
For example, the lawyer representing Triton Distribution and Vapetasia LLC told the Supreme Court that the FDA never told the companies they had to show their products are more effective than tobacco flavored e-cigarettes at getting adults to switch from conventional cigarettes.
Heyer called that a “massive sea change.”
The Justice Department argued the FDA 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.”
That defense was vigorously embraced by the court’s liberal justices, including Justice Ketanji Brown Jackson.
“This is not a discretionary call of the FDA,” she said.
Justice Elena Kagan said “there’s just not a lot of mystery” to what the FDA was doing when it reviewed the products.
“Everybody basically knows that flavors are particularly dangerous in terms of kids starting the use of smoking products,” she said.
Some conservative justices also seemed to suggest that the FDA has the upper hand.
If the agency determines that the potential benefits of flavored vapes for adults trying to quit traditional cigarettes don't outweigh the harm to young people, Justice Brett Kavanaugh said, “that’s kind of the end, isn’t it?”
But Heyer said the FDA, after the change in administrations, might reach a different conclusion if directed by the court to reconsider applications it previously denied.
In a recent social media post, President-elect Donald Trump said he “saved” flavored vaping during his first administration and will do it again after he returns to the White House in January.
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.
And public health groups sued the FDA for not moving fast enough to review vaping products after the agency, in 2016, finalized rules for regulating them.
The health groups worry that if the Supreme Court sides against the FDA, that will reverse the progress made in taking vaping products off the market and will make it easier to approve new ones.
While vaping produces fewer toxic chemicals than traditional cigarettes, it’s still not safe.
Nicotine, in addition to being highly addictive, can harm brain development. The aerosol can also contain cancer-causing chemicals, heavy metals and ultrafine particles that are damaging when inhaled deeply.
By 2015, e-cigarettes had taken over traditional cigarettes as the nicotine product of choice of U.S. high school students, according to the Centers for Disease Control and Prevention’s National Youth Tobacco Survey.
The case is FDA v. Wages and White Lion Investments LLC.