A Change in Administrations Underlines the Stakes of an E-Cigarette Case SCOTUS Heard This Week
The Food and Drug Administration (FDA) has never approved nicotine vaping products in flavors other than tobacco or menthol and probably never will unless it reconsiders the approach it has taken in recent years. But President-elect Donald Trump brags that he “saved flavored vaping” during his first term and promises he will “save vaping again.”
The change in administrations underlines the stakes of FDA v. Wages and White Lion Investments, a case that the U.S. Supreme Court considered this week. Triton Distribution, a Dallas-based e-liquid manufacturer, is challenging the FDA’s denial of its applications for “premarket” approval of its products, without which the company will be forced to shut down. If Triton prevails, it can stay in business while it submits new applications, and the FDA in the next administration is apt to be more receptive. That would be good news for adult vapers, including former smokers, who overwhelmingly prefer the flavors that the FDA has deemed an intolerable threat to the youth of America.
Last January, the U.S. Court of Appeals for the 5th Circuit ruled that the FDA had acted “arbitrarily and capriciously,” in violation of the Administrative Procedure Act (APA), by changing the criteria for premarket approval after Triton’s applications were submitted. The company’s main complaint is that the FDA, which initially told applicants that no particular kind of scientific evidence was necessary, later decided that manufacturers had to cite long-term cohort studies or randomized trials indicating that vaping products with supposedly kid-friendly flavors are more effective than tobacco-flavored alternatives in helping smokers quit.
The FDA also changed its position on safeguards against underage access. Although the agency initially said such “marketing plans” were “critical,” it explicitly ignored them in rejecting Triton’s applications, saying age verification measures are not effective enough to negate the risk that minors might end up consuming the company’s products.
Much of the questioning during oral argument focused on the issue of whether the FDA had in fact changed its criteria. Justices sympathetic to the agency suggested that manufacturers had adequate notice of its concerns about flavored vaping products.
The FDA “has been completely upfront about this,” Justice Elena Kagan told Eric Heyer, Triton’s lawyer. The agency “has tried to document” that “blueberry vapes are very appealing to 16-year-olds, not to 40-year-olds,” she said. But as Heyer pointed out, that claim is inconsistent with survey data indicating that adult smokers who switch to vaping commonly favor fruit, dessert, and candy flavors.
Heyer also noted that his client’s e-liquids, which are used with refillable vape systems, are not a common choice for teenagers. Deputy Solicitor General Curtis Gannon, representing the FDA, tried to rebut that point. “Seven percent of youth are still using
open tank systems or mod systems, according to survey results from earlier this year,” he claimed.
That is not true either. According to the 2024 National Youth Tobacco Survey, 6 percent of middle and high school students were “current” e-cigarette users, meaning they reported vaping during the previous month. Among those current users, 7 percent said they used “tanks or mod systems.” In other words, less than 0.5 percent of teenagers reported using such devices in the previous month, meaning Gannon’s figure is inflated by a factor of more than 14.
Justice Sonia Sotomayor seemed even more clueless about the subject at the center of this case. “All of these products contain tobacco, right?” she asked Heyer, who corrected her: “They contain nicotine.”
Even after learning that e-cigarettes do not contain tobacco, Sotomayor continued to assume they do. “Other than addiction, why would someone put nicotine into a product and then try to hide the flavor of tobacco?” she asked Heyer. “I’m a little bit at a loss.”
More than a little. Contrary to what Sotomayor seems to think, the nicotine solutions used in vaping products do not taste like tobacco unless manufacturers deliberately add that flavor. And her premise that nicotine’s presence in e-liquids can be explained only by a nefarious scheme to addict consumers is misguided in two ways. First, smokers who switch to vaping already have a nicotine habit, which they are trying to satisfy in a way that is much less dangerous to their health. Second, vapers like the psychoactive
Article from Reason.com
The Reason Magazine website is a go-to destination for libertarians seeking cogent analysis, investigative reporting, and thought-provoking commentary. Championing the principles of individual freedom, limited government, and free markets, the site offers a diverse range of articles, videos, and podcasts that challenge conventional wisdom and advocate for libertarian solutions. Whether you’re interested in politics, culture, or technology, Reason provides a unique lens that prioritizes liberty and rational discourse. It’s an essential resource for those who value critical thinking and nuanced debate in the pursuit of a freer society.
