Vaping is set to be a focus of the Supreme Court next week as federal authorities seek the court’s endorsement of its ban on flavored products, a measure aimed at curbing the rise in e-cigarette use among young individuals.
The Food and Drug Administration (FDA) has rejected over one million marketing applications for products featuring candy or fruit flavors that could entice minors. This action forms part of a broader initiative that proponents claim has successfully reduced the rate of teen vaping, following an alarming increase labeled as “epidemic” levels in 2019.
However, manufacturers of vaping products argue that the FDA has not adequately considered their claims that sweet-flavored e-liquids may assist adults in quitting traditional cigarettes, without putting youth at greater risk.
The stance could shift under Republican leadership, especially considering former President Donald Trump’s earlier promise to “save” vaping as shared in a social media post back in September.
The Supreme Court is expected to hear arguments on Monday regarding the FDA’s appeal stemming from a decision made by the conservative 5th U.S. Circuit Court of Appeals. While other courts have supported the FDA’s rejections, this particular appeals court ruled in favor of Triton Distribution, a Dallas-based firm, by overturning a ban on marketing nicotine-infused liquids such as “Jimmy The Juice Man in Peachy Strawberry,” which is used in e-cigarettes to create inhalable aerosols.
Triton argued that the FDA had altered its criteria abruptly, providing insufficient notice to the industry. Marc Scheineson, a former FDA associate commissioner and attorney who now advocates for smaller electronic tobacco firms, remarked, “It sort of pulls the chair out from the applicants.”
The FDA’s regulation of the booming vaping industry has been gradual, and despite the ongoing crackdown, many flavored vapes that are technically prohibited continue to be readily available. Recent actions by the agency have seen the approval of certain tobacco-flavored vapes and the introduction of menthol-flavored e-cigarettes meant for adult smokers.
According to Dennis Henigan, the vice president for legal and regulatory affairs at the Campaign for Tobacco-Free Kids, the combination of marketing refusals and age restriction enforcement at both federal and state levels has significantly reduced youth nicotine consumption, reaching its lowest point in a decade.
Henigan emphasized that the FDA had been explicit in its standards and voiced concerns regarding a possible court ruling that could allow for an increase in flavored vape product availability, which are notably popular among the 1.6 million high school students who currently engage in vaping. “We think that would be a real harm to public health,” he asserted.
