The Supreme Court on Tuesday agreed to hear the Food and Drug Administration‘s defense of its decision to reject applications from two companies to sell flavored vaping products.
The case known as FDA v. Wages and White Lion is set for the next term starting in October and surrounds the FDA’s rejection of the applications, citing the health risks these products pose to underage consumers.
The FDA’s appeal stems from a lower court ruling that the agency failed to follow proper legal procedures when it denied the applications from Triton Distribution and Vapetasia LLC. The companies, which filed their applications in 2020, sought the agency’s approval for products with flavors such as sour grape, pink lemonade, and creme brulee that included crude names for the flavorings such as “Suicide Bunny Bunny Season” and “Jimmy the Juice Man Strawberry Astronaut.”
Since 2016, e-cigarettes have been classified as tobacco products under the FDA’s jurisdiction, requiring manufacturers to seek approval under the Tobacco Control Act of 2009. The FDA argues flavored e-cigarettes pose a “known and substantial risk to youth” and that companies must demonstrate that their marketing is “appropriate for the protection of public health.”
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The FDA’s rejection of the applications, along with over 1 million other products, was challenged by the companies in the 5th U.S. Circuit Court of Appeals. The appeals court ruled that the FDA’s denial was “arbitrary and capricious” for not considering the companies’ plans to prevent underage access.
The Supreme Court’s decision to hear the case comes amid conflicting rulings from other federal appellate courts, prompting the justices to find a definitive resolution on the FDA’s regulatory authority over flavored vaping products.
