According to recent national news reports, the fate of e-cigarettes and flavored vapes could soon be determined by the U.S. Supreme Court pending results of a hearing held on Monday, December 2 to examine claims of whether the FDA unlawfully violated the Administrative Procedure Act by blocking the marketing and sale of more than a million new candy and fruit-flavored nicotine products in recent years.
E-cigarette and vaping manufacturers traditionally market their products as a way to help adults quit traditional cigarettes. According to federal law, companies are required to show evidence that adults need sweetly-flavored products to stop using tobacco and that the benefits outweigh the risks of youth addiction.
The FDA says the companies were denied because their data was inconclusive and did not show that flavored vapes had a net public benefit as stipulated in the law. The agency's guidance on how to meet the evidence requirement is at the center of the case.
Last year, a federal appeals court sided with vaping companies saying the FDA had acted arbitrarily. If the Supreme Court upholds that ruling, it could clear the way for broader marketing and sale of flavored nicotine products.
This is of particular concern given that statistics from the CDC consistently report e-cigarettes as the most commonly used tobacco product among middle and high school students.
The good news is that teen vaping has recently shown signs of decline in use, dropping in 2024 to its lowest level in a decade, but there remains a serious public health concern that candy and fruit-flavored products consistently attract youth to use and the nicotine in the product keeps them addicted.
The court is expected to decide the case in the coming months. We will keep you updated.
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