Will the Supreme Court Give Trump a Chance to “Save Flavored Vapes”?

Vaping companies have argued that the current FDA has unfairly denied applications to market products like “Killer Kustard” and “Iced Pineapple Express.”

WASHINGTON – E-cigarette makers tried Monday to convince the Supreme Court to order a reassessment of their vaping products in hopes that the new Trump administration will roll back 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, a lawyer representing two vaping companies, told the justices. “The president-elect publicly declared: ‘I’m going to save flavored vapes.'”

Under the Biden administration, the Food and Drug Administration has rejected more than 1 million flavored products that taste like fruit, candy or dessert.

The agency says companies must show that flavored vapes will benefit public health more by helping smokers quit than the harm they cause by appealing to young people.

“They simply did not have enough scientific evidence to support their claim that non-tobacco flavors are ‘crucial in getting adult smokers to make the switch,'” said Justice Department attorney Curtis Gannon.

The only vaping products approved by the FDA are those flavored with tobacco or menthol, which the agency says are less appealing to teens and adolescents.

The e-cigarette industry has accused the FDA of unfairly blocking the marketing of most flavored products.

While seven federal appeals courts have rejected this argument, the 5^th The U.S. 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 demonstrate that their products were more effective than tobacco-flavored e-cigarettes in enticing adults to give up conventional cigarettes.

Heyer called it a “radical change.”

The Justice Department argued that the FDA properly enforced the Tobacco Control Act, which states that the agency must consider both the “likelihood that existing users of tobacco products will stop using these products” and the “likelihood that those who do not use tobacco products will start using them”. such products.

This defense was vigorously adopted by the Court’s liberal justices, notably Justice Ketanji Brown Jackson.

“This is not a discretionary decision by the FDA,” she said.

Justice Elena Kagan said “there just isn’t much mystery” about what the FDA was doing when it reviewed the products.

“Everyone knows that flavorings are particularly dangerous for children who start smoking,” she said.

Some conservative judges also seem 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 do not outweigh the harm to young people, Judge Brett Kavanaugh said, “that’s kind of the end of it, don’t isn’t it?

But Heyer said the FDA, after the change in administrations, could reach a different conclusion if the court asks it to reconsider applications it had previously denied.

In a recent social media post, President-elect Donald Trump said he “saved” flavored vaping during his first administration and would do it again after returning to the White House in January.

In 2019, Trump signed legislation increasing the federal minimum age for the sale of tobacco products from 18 to 21.

But he also weakened a plan to crack down on flavored e-cigarettes, allowing exceptions benefiting manufacturers, retailers and adults.

And public health groups sued the FDA for failing to act quickly enough to review vaping products after the agency in 2016 finalized rules to regulate them.

Health groups fear that if the Supreme Court rules against the FDA, it would reverse progress made in removing vaping products from the market and make it easier to approve new products.

Even though vaping produces fewer toxic chemicals than traditional cigarettes, it is still not safe.

Nicotine, in addition to being highly addictive, can harm brain development. The aerosol may also contain carcinogenic chemicals, heavy metals and ultrafine particles that are harmful when inhaled deeply.

By 2015, e-cigarettes had supplanted traditional cigarettes as the nicotine product of choice among American high school students, according to the Center for Disease Control and Prevention’s National Youth Tobacco Survey.

The case is FDA v. Wages and White Lion Investments LLC.