Supreme Court to weigh whether regulators were heavy handed with flavored e-cigarette products

WASHINGTON — The Supreme Court took up an e-cigarette case Tuesday, weighing whether the Food and Drug Administration wrongly blocked the marketing of sweet flavored products amid a surge in vaping by young people.

Vaping companies argue the FDA unfairly denied more than a million applications to market fruit or candy flavored versions of nicotine-laced liquid that’s heated by the e-cigarette to create an inhalable aerosol.

The case comes as the FDA undertakes a sweeping review after years of regulatory delays intended to bring scientific scrutiny to the multibillion-dollar vaping market, which includes thousands of flavored vapes that are technically illegal but are widely available in convenience stores, gas stations and vape shops. The FDA recently approved its first menthol-flavored electronic cigarettes for adult smokers.

The agency says the sweet flavored e-liquids pose a “serious, well-documented risk” of enticing more young people to pick up a nicotine habit. In 2020, nearly 20% of high school students and almost 5% of middle-school students used e-cigarettes, and almost all of those kids used flavored products, the agency said in court documents.

The agency says companies were blocked because they couldn’t show the possible benefits for adult smokers outweighed the risk of underage use. The companies say they had prepared detailed plans to avoid appealing to young people.

The companies scored a victory when the U.S. 5th Circuit Court of Appeals sided with vaping companies and tossed out orders denying the marketing of e-liquids with names like “Jimmy The Juice Man in Peachy Strawberry.”

The 5th Circuit found the agency was unfair because it required the companies, without warning, to present studies showing that flavored products would help with smoking cessation.

The FDA appealed that finding to the Supreme Court. The justices are expecting to hear the case in the fall.

Other appeals courts have sided with the FDA, which regulates new tobacco products under a 2009 law aimed at curbing youth tobacco use.

Vaping companies have long claimed their their products can help blunt the toll of smoking, which is blamed for 480,000 U.S. deaths annually due to cancer, lung disease and heart disease.

Youth vaping has declined from all-time highs in recent years, but about 10% of high schoolers still reported e-cigarette use last year.

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