Supreme Court wrestles with FDA’s attempt to curb access to flavored vapes

The Supreme Court on Monday pressed the Food and Drug Administration on whether it followed the law in its effort to keep flavored e-cigarettes off shelves, weighing a lawsuit from a multibillion-dollar industry that has come under scrutiny because its products are popular with school-aged children.

The Supreme Court on Monday pressed the Food and Drug Administration on whether it followed the law in its effort to keep flavored e-cigarettes off shelves, weighing a lawsuit from a multibillion-dollar industry that has come under scrutiny because its products are popular with school-aged children. After more than an hour of oral arguments, the agency appeared to have support from the court’s three-member liberal bloc and, possibly, a few of its conservatives as well – at least for a limited outcome that could give the incoming Trump administration a chance to review the FDA’s actions to block flavored vaping products. Public health advocates have been sounding the alarm in recent years about a spike in vaping among young Americans. The FDA reports that 19% of high school students and 4.7% of middle school students vaped in 2020 – a far higher share than students who smoked. At issue were a series of denials during the first year of the Biden administration for vaping products that officials said are geared toward minors with flavors like “Pink Lemonade,” “Rainbow Road” and “Jimmy the Juice Man Peachy Strawberry.” The appeal is also entangled with broader political pressures – President-elect Donald Trump, for instance, recently vowed to “save vaping” – as well as a debate over the power of federal agencies that the court’s 6-3 conservative supermajority has repeatedly sought to curtail. At least some of the court’s conservatives were concerned with how the FDA reviewed the market applications from the companies, questioning whether regulators changed the type of evidence of health benefit required for approval. In describing the industry’s argument, conservative Justice Clarence Thomas suggested the method the FDA used was “a moving target.”