Supreme Court to Hear Case on FDA’s Flavored Vape Ban

The Supreme Court will consider federal restrictions on e-cigarette products next term, taking up a case about whether two companies’ flavored products should be restricted by the Food and Drug Administration (FDA). This comes amid growing concerns over the appeal of e-cigarettes to children and teens.

The court announced it will hear arguments in the case FDA v. Wages and White Lion Investments, but provided no further comment on its decision. The e-cigarette companies, Triton Distribution and Vapetasia LLC, challenged the FDA after it refused to authorize their flavored e-liquids, which include flavors such as “Jimmy The Juice Man Peachy Strawberry,” “Iced Pineapple Express,” and “Killer Kustard Blueberry.” The FDA argued that the potential benefits of these products in helping adults quit smoking were outweighed by the risk of attracting minors.

The Fifth Circuit Court of Appeals ruled in favor of the companies, stating the FDA acted unfairly by imposing last-minute requirements without notice and then rejecting the companies’ applications. The federal government asked the Supreme Court to review the case, arguing that the Fifth Circuit’s decision could have significant public health implications and undermine the Tobacco Control Act’s goal of preventing nicotine and tobacco addiction in future generations. This case is likely to impact other e-cigarette companies that have also contested the FDA’s rulings. Several other vape companies that lost their court battles have asked the Supreme Court to hear their cases.

It remains unclear when the Supreme Court will hear oral arguments, but it will issue a ruling before its term ends next June. This decision follows the Supreme Court’s refusal in 2023 to hear a similar case where an e-cigarette company wanted the court to reconsider a ruling that sided with the FDA. The flavored vapes case is one of several decisions announced by the court on Tuesday as its term wraps up. The court also decided to hear a case on Texas’ age verification law for adult websites and declined to take up a dispute over Illinois’ assault weapons ban, among other orders.

More than 2.1 million middle and high school students used e-cigarette products in 2023, according to the National Youth Tobacco Survey. This represents 7.7% of all students surveyed, with 89% of them using flavored products.

E-cigarettes are generally viewed as less harmful than traditional cigarettes but still pose health risks. While studies suggest they can help some people quit smoking, they are also criticized for causing nicotine addiction in children and teens. In 2020, the FDA issued guidance requiring manufacturers to outline how they would prevent their products from being marketed to children or sold without age verification. Although the FDA heavily regulates e-cigarettes, it has not banned flavored vapes entirely and recently authorized several menthol-flavored e-cigarettes, despite concerns about their appeal to teens. The FDA also rescinded its 2022 marketing ban on Juul e-cigarettes in June, amid ongoing litigation over its policies.