Supreme Court to Review FDA E-Cigarette Products Decision

Regulations by 2FIRSTS.ai
Jul.03.2024
Supreme Court to Review FDA E-Cigarette Products Decision
The US Supreme Court agrees to hear case on FDA's refusal to approve flavored e-cigarette products, citing health risks.

According to a report from Reuters on July 2, the United States Supreme Court has agreed to hear arguments from the Food and Drug Administration (FDA) regarding its decision to deny two companies' applications to sell flavored e-cigarette products. The FDA believes that these products pose health risks to young consumers.

 

The Supreme Court will hear this case in the next term, which begins in October of this year. Prior to this, a lower court ruled that the FDA did not follow the proper legal procedures required by federal law when rejecting applications for nicotine-containing products to be marketed.

 

In 2020, e-cigarette liquid manufacturers Triton Distribution and Vapetasia LLC submitted product applications to the FDA for flavors such as sour grape, powdered lemonade, and caramel pudding. Some of the products included in the applications are "Jimmy The Juice Man Strawberry Astronaut" and "Suicide Bunny Bunny Season".

 

According to a rule that went into effect in 2016, the FDA now considers e-cigarettes to be tobacco products and, like traditional cigarettes, they must undergo review by the agency under the 2009 Tobacco Control Act. The rule requires manufacturers to seek approval in order to continue selling their products.

 

Although the FDA has claimed that it has not fully banned flavored e-cigarette products, companies seeking approval must meet strict legal standards because these products pose a "known and significant" risk to young people. In order to obtain approval from regulatory authorities, companies must prove that their marketing activities are "appropriate to protect public health".

 

According to court records, the FDA has rejected applications from these two companies as well as over one million other products. To date, the FDA has only approved 27 e-cigarette products, all of which are tobacco or mint flavored.

 

In 2021, Triton and Vapetasia appealed the FDA's rejection of their applications to the United States Fifth Circuit Court of Appeals in New Orleans.

 

In January of this year, a panel of 10 judges from the Fifth Circuit Court of Appeals ruled 10-6 that the FDA violated the federal Administrative Procedure Act by not considering a company's plan to prevent minors from accessing and using their products when rejecting an application. The decision was written by Judge Andrew Oldham, appointed by former Republican President Donald Trump. Oldham pointed out that the FDA initially requested detailed plans from e-cigarette companies on how they would prevent youth from misusing their products, but ultimately denied the applications without reviewing these plans.

 

Oldham stated that this did not fulfill the institution's obligation to be "open and straightforward," meaning they failed to communicate with the company in a direct and honest manner.

 

Triton's lawyer, Eric Heyer, stated that the company "looks forward to the Supreme Court reviewing the FDA's sudden implementation of new study requirements after the fact, as well as instances where the agency did not follow its own application guidelines."

 

The ruling of the Fifth Circuit Court of Appeals is at odds with the conclusions of other federal appellate courts on the issue, prompting the FDA to appeal to the Supreme Court.

 

We welcome news tips, article submissions, interview requests, or comments on this piece.

Please contact us at info@2firsts.com, or reach out to Alan Zhao, CEO of 2Firsts, on LinkedIn


Notice

1.  This article is intended solely for professional research purposes related to industry, technology, and policy. Any references to brands or products are made purely for objective description and do not constitute any form of endorsement, recommendation, or promotion by 2Firsts.

2.  The use of nicotine-containing products — including, but not limited to, cigarettes, e-cigarettes, nicotine pouchand heated tobacco products — carries significant health risks. Users are responsible for complying with all applicable laws and regulations in their respective jurisdictions.

3.  This article is not intended to serve as the basis for any investment decisions or financial advice. 2Firsts assumes no direct or indirect liability for any inaccuracies or errors in the content.

4.  Access to this article is strictly prohibited for individuals below the legal age in their jurisdiction.

 

Copyright

 

This article is either an original work created by 2Firsts or a reproduction from third-party sources with proper attribution. All copyrights and usage rights belong to 2Firsts or the original content provider. Unauthorized reproduction, distribution, or any other form of unauthorized use by any individual or organization is strictly prohibited. Violators will be held legally accountable.

For copyright-related inquiries, please contact: info@2firsts.com

 

AI Assistance Disclaimer

 

This article may have been enhanced using AI tools to improve translation and editorial efficiency. However, due to technical limitations, inaccuracies may occur. Readers are encouraged to refer to the cited sources for the most accurate information.

We welcome any corrections or feedback. Please contact us at: info@2firsts.com

Philippines BIR Steps Up Illicit Vape Enforcement Ahead of Christmas Shopping
Philippines BIR Steps Up Illicit Vape Enforcement Ahead of Christmas Shopping
The Philippines’ Bureau of Internal Revenue is intensifying enforcement against illicit vape and tobacco products ahead of the Christmas shopping season, directing regional and enforcement offices to strengthen monitoring of production sites, warehouses, distribution channels and retail outlets. The BIR destroyed 240,550 illicit vape products in August with an estimated tax liability of about PHP1.53 billion. A nationwide tax-compliance operation in July also inspected 3,590 businesses involved in tobacco and vapor products.
Regulations
Sep.17 by 2Firsts Perspectives
EU Commission Clarifies Vaping, Smokeless Nicotine Use in Proposed Cardiovascular Checks
EU Commission Clarifies Vaping, Smokeless Nicotine Use in Proposed Cardiovascular Checks
The European Commission has clarified to 2Firsts that its proposed cardiovascular health checks would assess smoking, vaping and the use of smokeless nicotine products as part of patients’ medical histories. The Commission also said Member States may organise additional checks within their healthcare systems. In the same response, it pointed to JRC research on e-cigarettes, heated tobacco products and nicotine pouches that has fed into the evaluation of EU tobacco legislation.
Nov.09
Germany's Four-Year Tobacco Tax Plan Heads to Parliament as BAT, JTI and PMI Push for Changes
Germany's Four-Year Tobacco Tax Plan Heads to Parliament as BAT, JTI and PMI Push for Changes
Germany's parliament is scheduled to hold a first reading of amendments to the Tobacco Tax Act on September 24. The government plans annual tax increases from 2027 through 2030 covering cigarettes, heated tobacco, vaping liquids and other categories. It expects the reform to generate €756 million in additional revenue in 2027, rising to €3.589 billion in additional annual revenue by 2030. Ahead of the parliamentary debate, the German Association of the Tobacco Industry and Novel Products, or BVTE, launched the "Tabaksteuer mit Augenmaß" campaign backed by BAT, JTI, Philip Morris, Reemtsma and wholesale and retail groups.
Sep.23
U.S. Military Could Test Nicotine Pouches and Vapes for Smoking Cessation as Washington Examiner Cites ZYN and Potential $4 Billion Reduction in Related Defense Costs
U.S. Military Could Test Nicotine Pouches and Vapes for Smoking Cessation as Washington Examiner Cites ZYN and Potential $4 Billion Reduction in Related Defense Costs
The House-passed FY2027 National Defense Authorization Act includes a provision authorizing the defense secretary to conduct a one-year smoking-cessation pilot for active-duty service members. Section 707 lists counseling, nicotine gum and patches alongside what the bill calls "electric nicotine delivery systems," nicotine pouches and heat-not-burn products. A recent Washington Examiner op-ed cited ZYN as an example in arguing for the provision, but the legislation does not name any commercial brand or supplier. ZYN is made by PMI-owned Swedish Match USA, with specified products holding FDA marketing authorizations and modified risk orders.
Sep.20
Australia Adds 6-Methylnicotine to Schedule 9 Prohibited Substances, Effective October 1
Australia Adds 6-Methylnicotine to Schedule 9 Prohibited Substances, Effective October 1
Australia's Therapeutic Goods Administration published a final decision on September 25 to classify 6-methylnicotine as a Schedule 9 prohibited substance under the Poisons Standard, effective October 1, 2026. TGA said the chemical has been reported in e-cigarette liquids sold in Australia and marketed as nicotine-free or nicotine alternatives, while evidence also indicates its use in preparations such as oral pouches. The government originally proposed a Schedule 7 classification but ultimately adopted the stricter Schedule 9 designation, citing acute toxicity, dependence risk, use in unapproved consumer products and misleading marketing.
News
Sep.29 by 2Firsts Perspectives
Special Report | From New York to Washington: How FDA’s Tobacco Center Is Reworking Product Review
Special Report | From New York to Washington: How FDA’s Tobacco Center Is Reworking Product Review
FDA’s Center for Tobacco Products is reshaping how it approaches tobacco product review. Based on 2Firsts’ on-site reporting in New York and Washington, this report traces CTP’s emerging direction: stronger links between PMTA and tobacco harm reduction, more category-specific review, greater emphasis on decision-relevant science, more predictable timelines and expanded use of sPMTA for product modifications. CTP also acknowledged major constraints, including just nine PMTA review teams, persistent backlogs and limits on hiring capacity.
Regulations
Oct.08