The Supreme Court delivered a significant verdict on Wednesday, reinforcing the Food and Drug Administration’s (FDA) measures against the proliferation of sweet-flavored vaping products. This comes in response to a marked increase in the use of electronic cigarettes by teenagers. While the justices unanimously overturned a previous federal appeals court decision, this ruling does not definitively conclude the case. The FDA may consider altering its strategy in light of former President Donald Trump’s assurances to support the vaping industry.
In particular, the Supreme Court determined that during President Joe Biden’s administration, the FDA acted within its legal bounds when it refused an application submitted by Dallas-based Triton Distribution. The company’s application was to market flavored e-juices such as “Jimmy The Juice Man in Peachy Strawberry” and “Suicide Bunny Mother’s Milk and Cookies.” These products are used in e-cigarettes, where they are heated to produce an inhalable aerosol.
Yolonda Richardson, leading the Campaign for Tobacco-Free Kids, lauded the Supreme Court’s decision as a substantial triumph for protecting children’s health in America. She emphasized that flavored e-cigarettes have significantly contributed to the youth nicotine addiction crisis. The FDA has dismissed applications for over a million flavored nicotine products due to their inability to demonstrate a net positive impact on public health, as stipulated by law.
Nevertheless, the FDA has sanctioned certain tobacco-flavored vapes. Recently, it approved its first menthol-flavored e-cigarettes intended for adult smokers, contingent on company data showing the product’s efficacy in helping individuals quit smoking. The conservative 5th U.S. Circuit Court of Appeals, however, had previously sided with Triton, alleging that the FDA altered its standards without sufficient advance notice, which constituted a violation of federal law.
Though Wednesday’s decision predominantly supported the FDA, the Supreme Court highlighted an omission on the FDA’s part. The agency had previously stated that the company’s marketing plan would weigh heavily in their assessment of the application. Despite this assertion, they did not evaluate the marketing plan, a point Justice Samuel Alito addressed in his opinion.
Eric Heyer, representing Triton, expressed his dissatisfaction with the outcome but reiterated the company’s belief in the significant potential of their products to reduce harm. Triton intends to pursue further legal actions. The appeals court has been instructed to evaluate whether the FDA’s oversight regarding the marketing plan constitutes a critical error that might eventually result in a favorable ruling for Triton.
Up to now, the FDA has not modified its policies concerning vaping. However, the landscape within the FDA is undergoing changes; Brian King, the top tobacco regulator, was relieved of his duties on Tuesday as part of broader reductions in the federal health workforce. These changes have seen many prominent health experts depart the agency. During his tenure, King was responsible for issuing numerous warning letters to companies involved in the flavored vape market.