Supreme Court Likely To Back FDA On Banning Youth-Targeted Flavored Vapes

During a session on a Monday, Justices Amy Coney Barrett, Brett Kavanaugh, and their liberal peers appeared favorable towards the FDA's enforcement actions targeting these products. This support highlighted the court's understanding of the agency's role in safeguarding public health, particularly among youth.

Justices Scrutinize FDA's Regulatory Authority

At the heart of the case, FDA v. Wages and White Lion, is the FDA's directive that e-cigarettes like "Suicide Bunny Mother’s Milk and Cookies" and "Jimmy The Juice Man Peachy Strawberry" not be sold due to their appeal to younger demographics. Eric Heyer, speaking for the companies Wages and White Lion Investments, argued that the FDA changed its approval benchmarks without due notice.

The FDA's regulation stems from a 2016 requirement that all e-cigarettes comply with the Tobacco Control Act, which mandates that any new tobacco product secure FDA approval by demonstrating it serves public health. This requirement was emphasized to prevent new tobacco products from exacerbating youth addiction.

Debate Over Changing Standards In Regulation

During the legal proceedings, Justice Clarence Thomas raised concerns about the perceived inconsistency in the FDA’s guidelines. Companies have contended that the regulatory framework is a "moving target," suggesting a lack of clarity or shifts in the guidelines over time.

This point was countered by Deputy Solicitor General Curtis Gannon, who maintained that the companies did not present sufficient scientific evidence to support their claims that their products do not specifically target or appeal to minors.

Court’s Focus on Evidence and Legal Standards

Brett Kavanaugh voiced his attempt to discern the "legal error" in the FDA's actions, hinting at the complexity of regulatory decisions which often involve some level of uncertainty. "It’s kind of the end of it, isn’t it?" he remarked, referring to the FDA’s ultimate authority in these matters.

Justice Elena Kagan also commented on the case, underscoring the transparency of the FDA's intentions. "I guess I’m not really seeing what the surprise is here, or what the change is here," she noted, emphasizing that the FDA had clearly communicated its regulatory focus and rationale, particularly regarding the appeal of flavored vapes to minors.

Implications for Future FDA Policies

The outcome of this case could set a significant precedent for how the FDA regulates tobacco products, especially as it relates to flavors that are potentially designed to attract younger users. With oral arguments concluded, the court's decision is keenly awaited by public health advocates and the vaping industry alike.

The case’s implications extend beyond just the parties involved. As President-elect Donald Trump prepares to take office, his administration's appointments and policies could further influence FDA regulatory actions, given his plans to appoint Robert F. Kennedy Jr. as Health and Human Services Secretary.