The Flavored E-Cigars Problem and the U.S. Supreme Court’s High-Dimensional Supermajority
Experts say the ultimate decision of the case could be a narrow one, as the Supreme Court may rule in many different ways. Keep in mind, though, that the conservative Supreme Court supermajority has not hesitated to redraw the regulatory map, and if it does so in this case, it could well open the floodgates to flavored e-cigarettes that greatly increase the number of kids vaping their way through middle and high school.
Indeed, the FDA stopped looking at the marketing of vaping products to children because the agency concluded that there was no way to allow flavored e-cigarettes without harming large numbers of children. To date, the only flavored e-cigarettes the agency has approved for sale are those that are tobacco and menthol flavored. The FDA said essentially that those flavors are more likely to get adults off regular and far more dangerous cigarettes and less likely to attract underage users.
Law professor Jonathan Adler, who has written extensively about this subject, says there’s a concern that the FDA has been operating in an unfair manner in the way it has been evaluating all these applications for how to use vaping products.
Basically, the companies claim that because the specific demands of the agency have been a moving target, the rules are arbitrary and capricious in violation of federal administrative law.
He said that the decision had an additional feature that threatened to make the decision the de facto rule for the country as a whole, one that would require the FDA to remake it’s regulatory regime.
Can teenagers understand the importance of vaping? The Supreme Court’s response to a question by D.C. Roberts and Ms. Kagan
If you don’t know much about vaping, be assured that teenagers do. For the uninitiated in recreational stimulants, vaping is the inhaling of an aerosol mist from an electronic cigarette or similar device, which heats up a nicotine liquid to create a vapor that looks like smoke. It is an alternative that helps some smokers quit tobacco cigarettes but it is also popular with middle and high school kids. In 2023 over 2.1 million young people, including 10% of high school students, reported e-cigarette use and of those, more than a quarter reported daily vaping.
Vaping is the tobacco alternative that is quite the rage among middle and high school kids, but also can help some adult smokers wean themselves off more damaging tobacco products, mainly cigarettes.
In the Supreme Court chamber on Monday, Chief Justice John Roberts asked Deputy Solicitor General Curtis Gannon, the government’s lawyer, whether the government has “an obligation to tell people what they have to do to comply with your regulation.”
Gannon replied that the FDA gave these vaping businesses fair notice that their business model is a “risky” one. The companies couldn’t satisfy requirements of the statute because they didn’t have sufficient evidence.
Gannon noted that Congress was concerned about the fact that most people who become addicted to nicotine start when they are under age, “at a time when the adolescent brain is particularly vulnerable to the effects of nicotine.” Justice Ketanji Brown Jackson referred to the statute in saying that it was not a discretionary call of the FDA.
Lawyer Eric Heyer, representing the vaping companies, told the justices that without the approval of more flavors, many small vaping companies will be forced to shut their doors. But Justice Elena Kagan replied that “the difficulty with that, and the FDA I think has tried to document this, is that blueberry vapes are very appealing to 16-year-olds, not 40-year-olds.”