SCOTUS Justices Appear To Side With Biden’s FDA On Flavored Vapes For Minors
On Monday, a majority of Supreme Court justices appeared to favor arguments that the Food and Drug Administration (FDA) acted within its authority by tightening standards for flavored vaping products considered especially appealing to minors.
The FDA’s actions led to the prohibition of two companies from selling their popular nicotine products, as reported by the New York Post. While the court may address procedural concerns regarding the FDA’s decision-making process, Justices Amy Coney Barrett and Brett Kavanaugh, along with the three liberal justices, appeared inclined to support the agency's overall position.
Justice Brett Kavanaugh questioned the vape companies’ attorney, Eric Heyer, asking, “I want to figure out what the legal error is there. You agree that at the end of the day, the agency has to make a choice, and it’s going to be a choice with uncertainty.”
Heyer argued that the FDA altered its standards during the approval process without properly notifying the companies of these changes. The dispute centers around vaping regulations introduced in 2016 under the Obama administration, which required e-cigarette makers to demonstrate that their products were “appropriate for the protection of public health.”
In 2020, the companies Triton Distribution and Vapetasia sought approval for several flavored products, but the FDA rejected their applications. The agency highlighted that the flavors—including “Suicide Bunny Mother’s Milk and Cookies” and “Jimmy The Juice Man Peachy Strawberry”—had strong appeal to minors. Data from 2020 showed that nearly 20% of high school students and 1 in 20 middle school students used e-cigarettes.
Despite the FDA’s rejection, the companies found success at the 5th U.S. Circuit Court of Appeals, a conservative court known for its bold rulings, some of which have been deemed extreme even by the Supreme Court.
Justice Elena Kagan questioned the surprise expressed by the companies, remarking, “There’s just not a lot of mystery here about what FDA was doing. You might disagree with that because you think that, in fact, the world of 40-year-olds really wants to do blueberry vaping, but you can’t say that the FDA hasn’t told you all about what it’s thinking in this respect.”
Deputy Solicitor General Curtis Gannon, representing the FDA, argued that the vape companies failed to provide sufficient scientific evidence to support their claims. “They just didn’t have sufficient scientific evidence on that score,” Gannon said.
Justice Clarence Thomas explored whether the FDA had shifted its standards, noting the companies’ assertion that the agency’s guidance was “actually a moving target.”
Justice Kavanaugh focused on potential relief for the companies, suggesting that they could reapply for FDA approval rather than seeking judicial intervention. “It’s kind of the end of it, isn’t it?” he asked, pointing out that Congress had granted the FDA authority to make these decisions.
The Supreme Court's review of FDA v. Wages and White Lion Investments comes just weeks before President-elect Donald Trump is set to take office. Trump has pledged significant changes to federal agencies, including the FDA, under the leadership of Health and Human Services Secretary-designee Robert F. Kennedy Jr.