Supreme Court Hears Case on Flavored Vapes Popular With Teenagers

The Supreme Court heard arguments on Monday over whether the Food and Drug Administration had acted lawfully in rejecting applications from two manufacturers of flavored liquids used in e-cigarettes with names like Jimmy the Juice Man Peachy Strawberry, Signature Series Mom’s Pistachio and Suicide Bunny Mother’s Milk and Cookies.

A 2009 law, the Family Smoking Prevention and Tobacco Control Act, requires makers of new tobacco products to obtain authorization from the F.D.A. The manufacturers’ applications, the law says, must demonstrate that their products are “appropriate for the protection of the public health.”

The agency has denied many applications under the law, including the two at issue in Monday’s case, saying the flavored liquids presented a “known and substantial risk to youth.”

The U.S. Court of Appeals for the Fifth Circuit ruled in January that the agency changed the rules in the middle of the application process, accusing it of “regulatory switcheroos” that sent the companies “on a wild-goose chase.” More formally, the court said the agency’s actions had been arbitrary and capricious.

In asking the Supreme Court to hear the case, Food and Drug Administration v. Wages and White Lion Investments, No. 23-1038, the agency’s lawyers cited another appeals court that had reached the opposite conclusion. The Fifth Circuit’s decision “has far-reaching consequences for public health and threatens to undermine the Tobacco Control Act’s central objective of ‘ensuring that another generation of Americans does not become addicted to nicotine and tobacco products,’” they wrote, quoting from the other appeals court’s decision.

The Fifth Circuit’s decision is an outlier, Curtis E. Gannon, a lawyer for the agency told the justices on Monday. He added that “common sense tells us that a flavor like Mother’s Milk and Cookies is going to be disproportionately attractive to children.”