U.S. Supreme Court to Hear Vape Ban Case; Former FDA Deputy Commissioner Joins Vape Industry's Defense

According to a report from the New York Post on November 28, the issue of vapes will be brought before the Supreme Court next week. Federal regulatory agencies are requesting Supreme Court support for their ban on flavored e-cigarette products, which aims to combat the significant increase in youth vape use.

The Food and Drug Administration (FDA) has rejected marketing applications for over a million candy or fruit-flavored products. Advocates say this measure will help reduce the rate of youth vape use after a surge in 2019 that reached "epidemic levels." 

However, vape companies argue that the FDA is ignoring their arguments that flavored e-cigarette products help adults quit smoking and do not increase the risk for teenagers.

In September, Donald Trump took to social media to vow to "save" vapes, but his administration may take a different approach moving forward.

On Monday (25th), the Supreme Court heard an appeal from the FDA against a ruling by the Fifth Circuit Court of Appeals in the United States. Despite other courts supporting the FDA's decision, the Appeals Court sided with Triton Distribution. It overturned a ruling that banned the sale of nicotine e-liquids (such as "Jimmy The Juice Man in Peachy Strawberry"). Triton stated that the FDA unfairly changed its requirements without sufficient advance notice.

"It sort of pulls the chair out from the applicants," said Marc Scheineson, a former FDA associate commissioner and attorney who now represents other small electronic tobacco companies.

The FDA's regulation progress in the vape market has been slow, with illegal flavored e-cigarettes still widely available. The FDA has approved some tobacco-flavored vapes, and recently approved the first mint-flavored e-cigarette for use by adult smokers.

Dennis Henigan, Vice President of Legal and Regulatory Affairs for the Smoke-Free Kids Campaign, pointed out that by combining bans on tobacco products with enforcement of age restrictions at the federal and state levels, youth nicotine use has been reduced to its lowest levels in a decade.

The FDA's requirement is clear: it is concerned that a court ruling could lead to flavored vapes becoming even more popular. Flavored vapes are the primary choice for 1.6 million high school students still using e-cigarettes, and this could pose a serious threat to public health.