Flavored Vape Restrictions Upheld by Supreme Court

Republican lawmakers have argued that the FDA has in-effect “banned” vape products, which it does not have the authority to do.

The Supreme Court has upheld a U.S. Food and Drug Administration (FDA) decision to block the marketing and sale of certain flavored e-cigarette products across the country, due to fears that they are designed to target minors.

The decision (PDF) was reached unanimously by the U.S. Supreme Court on Wednesday, ruling in favor of the FDA’s right to protect American youths from the dangers of certain flavored e-cigarettes and vapes. 

Although vaping was once promoted as a tool to help adult smokers quit, recent research has shown that teens who use flavored e-cigarettes are more likely to start smoking tobacco cigarettes later, and that the introduction of e-cigarettes with fruit or candy flavors have caused a rise in youth vaping rates.

Additional research has also linked vaping to various health concerns among teenagers and young adults, including seizures, increased risks of pneumonia and other respiratory conditions, as well as changes to human DNA similar to those caused by traditional cigarettes.

As a result of these studies and others, the FDA ceased approval of most flavored e-cigarette products in 2020, particularly those with fruit and candy flavorings, citing their appeal to young users. 

However, e-cigarette manufacturer Wages and White Lion Investments LLC, doing business as Triton Distribution, eventually filed a lawsuit against the FDA, arguing that the federal agency had changed course in the midst of its approval process, acting arbitrarily and capriciously when it chose to block the sale of some flavored e-cigarettes.

This contention was largely dismissed in the federal judiciary, with multiple courts upholding the FDA’s actions, recognizing that the agency had sufficiently signaled its intentions to limit vape flavors harmful to young consumers. 

The lone holdout in the proceedings was the Fifth Circuit, which agreed with Triton in its decision (PDF) that the FDA had changed its terms in the midst of the review process.

As a result of this decision, the FDA brought an appeal to the U.S. Supreme Court.

In addition to Triton’s arguments, a friend-of-the-court brief (PDF) submitted to the Court by a group of 13 Republican lawmakers stated that the FDA had overstepped its bounds, arguing that the agency had in-effect “banned” the sale of flavored e-cigarettes, which is an action only Congress has the right to take.

However, the Supreme Court was not swayed by either Triton’s or the lawmakers’ arguments, stating in its opinion, “So when the FDA ultimately denied authorization to respondents’ flavored (though non-cartridge) products, it did not reverse course. Rather, it followed through on the 2020 guidance’s warning that the agency would also prioritize enforcement against manufacturers ‘whose [products’] marketing is likely to promote use by . . . minors.’”

Teen Vaping Risks

Teen vaping has emerged as a significant health issue in the U.S. in recent years, prompting many federal officials to emphasize the need for continued action, with restrictions in flavored e-cigarettes being shown to have an association with a 3.6 percentage point decrease in daily vaping by young adults.

For this reason, agencies like the FDA and the U.S. Centers for Disease Control and Prevention (CDC) are continuing to advocate for stronger regulatory measures to guard against teen e-cigarette use. Some of these measures have seen success, with the CDC reporting that teen vaping rates had dropped to their lowest levels in 10 years late last year.

However, another study from earlier in 2024 showed that more than half of U.S. teens who vape do so to deal with stress, while prior studies have shown that vaping could be linked to major depression among American youths.