Justices hear FDA case on flavored vapes
The Supreme Court on Monday morning heard oral arguments in a challenge to the Food and Drug Administration’s rejection of two companies’ applications to sell fruit-, candy-, and dessert-flavored liquids for use in e-cigarettes. A lawyer for the FDA urged the justices to leave the denials in place, citing the health and addiction risks of the products to young people. The attorney representing the vape companies complained that the agency had “misled” his clients and that the denial was a “massive sea change” from the agency’s prior position.
A federal law, the Family Smoking Prevention and Tobacco Control Act, requires the makers of tobacco products to obtain authorization from the FDA before introducing a new product on the market. To obtain that authorization, a manufacturer must show that marketing the product would be “appropriate for the protection of the public health” – a standard that requires the FDA to consider “the risks and benefits to the population as a whole,” including both the likelihood that people who currently use tobacco products will stop using them and the chance that people who do not use them will begin to do so.
The two companies involved in the case before the Supreme Court, Triton Distribution and Vapetasia, applied to the FDA for permission to market flavored liquids for use in e-cigarettes. Their products include the flavors “Rainbow Road,” “Crème Brulee,” and “Jimmy the Juice Man Peachy Strawberry.”
