The Supreme Court on Wednesday determined that the Food and Drug Administration had acted legally in rejecting applications from two manufacturers of flavored liquids used in e-cigarettes with names such as Jimmy the Juice Man Peachy Strawberry, Signature Series Mama Pistachio, and Suicide Bunny's Breast Milk and Cookies.
In a unanimous decision written by Judge Samuel A. Alito Jr., the judiciary upheld an FDA order that banned retailers from marketing tobacco products of taste. The court rejected the allegation that the agency had unfairly switched requirements during the application process.
Judge Alito wrote that the authorities' denial of applications was “fully consistent” with the agency's guidance on tobacco control. The judge rejected a decision by the U.S. Court of Appeals for the Fifth Circuit, finding that the agency was not attempting to change the rules midway through the approval process, and rejecting the decision that the agency acted on arbitrarily and on a whim.
In his opinion, Judge Alito highlighted the potential dangers of flavored products that are attractive to middle and high school students, writing that “options of flavorful options add to the appeal of e-cigarettes, and the demand for such products is actively contributing to the younger Americans.”
“Flavors invite children, so Congress has given the FDA the authority to make science-based decisions about the suitability of our country's health,” said Erica Seward, the national advocate for the American Lung Association, who praised the court's decision.
This decision is at a difficult turning point for agents.
Over the past few months, leaders have celebrated 10-year lows in the percentage of youth using e-cigarettes. The FDA attributes effective messaging aimed at teenagers and aggressive enforcement against people selling illegal steam in flavors such as unicorn shakes and watermelon bubble gum.
The agency has also been deeply reduced to staff in the tobacco division and counterparts at the Centers for Disease Control and Prevention, which collects data on tobacco use among young people. Among the cuts of thousands of staff, Brian King, director of the FDA's tobacco products center, was offered a new role in Indian health services and an implicit expulsion, an option to work in Alaska or New Mexico.
Seward described the decimation of federal cigarette management staff as “Big cigarette Christmas Day.”
“No one will make sure the tobacco industry doesn't flood the market with deadly products, and no one counts the kids they get addicted,” she said.
Wednesday's decision was a “rumpy verification” of the FDA's work, said Mitch Zeller, former director of the tobacco division of the agency, who served during the first Trump administration and served under Presidents Barack Obama and Joseph R. Biden Jr., but he said the timing (the day after a deep cut) was ironic as it would limit the future of use by young people.
“It puts the Trump administration's ability to continue working on behalf of public health,” he said.
The 2009 Act, the Family Smoking Prevention and Tobacco Control Act, requires manufacturers of new tobacco products to obtain approval from the FDA in accordance with the Act, and manufacturer applications must demonstrate that the product is “suitable for public health protection.”
The agency has rejected many applications under the law. This states that the flavor liquids exhibited “substantial risks known to young people,” including issues prior to Justices' lawsuits being issued.
The appeals court last year found that the agency had altered rules midway through the application process, accusing the “regulatory switch eros” of “regulatory switch eros” that sent “a wild goose tracing.” More formally, the court said the agency's actions were arbitrary and whimsical.
By asking the Supreme Court to hear about the suit, Food and Drug Administration vs. wages and investments in White Lion, in 23-1038 No. 23-1038, the agency's lawyers cited another court of appeals that reached the opposite conclusion. The Fifth Circuit's decision “threatening to undermine the central purpose of the Tobacco Control Act to ensure that other generations of Americans do not rely on nicotine and tobacco products,” they wrote, citing the decisions of other courts of appeals.
What's next after federal tobacco regulations is uncertain. President Trump suggests moving forward with the benefits of e-cigarette use.
However, major tobacco companies are complying with FDA regulations and have received approval to sell more stable products, such as tobacco and menthol-flavored e-cigarettes. At least one company, Reynolds American, has offered large donations to Trump's campaign, revealing it hopes the FDA will crack down on flavored e-cigarettes poured from China and robbed market share.
