Key Takeaways:
– The Supreme Court justices are not convinced the FDA misled companies before disallowing the sale of sweet-flavored vapes.
– Teen vaping use has dropped to its lowest level in a decade, but there are concerns about the incoming president’s stance.
– Vaping businesses can reapply for sales permission if they lose in court.
Flavored Vaping and the FDA
A majority of Supreme Court justices showed skepticism on Monday when the question arose whether federal regulators had misled companies before denying them the permission to sell sweet-flavored vaping products. The discussion follows a surge in teen usage of e-cigarettes, which sparked a crackdown by the Food and Drug Administration (FDA).
The conservative-majority court had its reservations about the FDA’s measures, which led to the rejection of over a million nicotine products resembling the taste of fruit, dessert, or candy. Interestingly, teen vaping usage has been in a steady drop, reaching its decade’s lowest level.
The Bulwark of the Vaping Industry
Vaping companies have propagated their products as a beneficial tool for adults seeking to quit traditional cigarettes. They argue the FDA, with little warning, altered its standards resulting in the blockage of over a million new flavored products. Supreme Court Justice Elena Kagan voiced her skepticism on this claim, stating she failed to see how this decision came as a surprise, given that the industry was aware of the FDA’s stance preventing teen smoking.
Despite this, the FDA has been facing criticism for its slow response to regulating the burgeoning vaping market. Flavored vapes which are technically illegal are still readily available, despite the crackdown.
Checks and Balances
Whether the FDA misled the companies or not, the agency argues the rejections were due to businesses failing to establish a net public benefit from flavored vapes, as mandated by law. However, the FDA has approved some tobacco-flavored vapes and even granted permission for its first menthol-flavored electronic cigarettes aimed at adult smokers. This decision was based on data showing the product’s efficiency in assisting quitting the habit.
Decoding the Legal Implications
Justice Neil Gorsuch questioned the fairness of the FDA’s process and whether it provided the companies an equitable opportunity to represent their claims. If misleading guidance by agencies is a concern, then companies must seek alternatives, expressed Conservative Justice Brett Kavanaugh. He also inferred that the FDA wasn’t obligated to provide the guidance it provided in the vaping case.
The company can indeed lodge an application for sales approval, even if they are unsuccessful in court. However, this can be a time-consuming process, potentially leading to business closures, noted Triton attorney Eric Heyer.
Looking Ahead
SCOTUS has previously shown skepticism towards the power of federal regulators. There is a sense of defiance as companies resist abiding by the regulators’ interpretation of the law, a principle known formerly as the Chevron doctrine. Justice Amy Coney Barrett questioned if the vaping companies expected the court to further undermine this concept.
The court now awaits a decision on the case in the coming months. This ruling could hold significant consequences for the vaping industry and future FDA regulatory actions.