Justices Seem Skeptical About Challenges Brought by Vaping Industry to FDA Regulations

The Supreme Court appeared skeptical this week about challenges brought by the vaping industry to the Food and Drug Administration’s (FDA) decision denying authorization to bring its flavored e-cigarettes to market, NPR reports.

The case focuses on legislation enacted in 2009 that gives the FDA a mandate to limit the availability of nicotine products for minors. Since then, Congress has fortified the mandate. The FDA has made it almost impossible for vaping companies to sell their products using flavors that appeal to youth. According to the companies, the FDA has acted in an arbitrary manner through its denials for flavored e-cigarettes and what they claim were changes to the criteria for approval.

Politico reports that e-cigarette liquid maker Triton Distribution argued the court should affirm a lower court’s ruling that the FDA reconsider its applications to sell flavored liquids containing nicotine that e-cigarettes heat for a user to inhale. The FDA has denied Triton’s applications to sell the flavored e-liquids out of concern that they appeal to children.

During oral arguments on Monday, liberal justices reiterated FDA concerns about the flavors’ appeal to youth. “Everybody basically knows that flavors are particularly dangerous in terms of kids starting the use of smoking products,” Justice Elena Kagan said. Some conservatives on the court questioned whether there would be any point in asking the agency to reconsider its decision.

A decision is expected by the end of the Supreme Court term in June.