A majority of Supreme Court justices didn't seem convinced Monday that federal regulators misled companies as they refused to allow them to sell sweet flavored vaping products following a surge in teen e-cigarette use. All three of the court's liberals and a few of its six conservatives appeared to support the Food and Drug Administration's arguments, CNN reports.
- The court did raise questions about the FDA crackdown that included denials of more than a million nicotine products formulated to taste like fruit, dessert, or candy. Teen vaping use has since dropped to a decade low, but the agency could change its approach after the inauguration next month of President-elect Trump, who has promised to "save" vaping, the AP reports.
- Vape companies have long marketed their products as a way to help adults quit traditional cigarettes. They say the FDA changed its standards with little warning. Justice Elena Kagan and other justices, though, were skeptical. "I'm not really seeing what the surprise is here or what the change is here," Kagan said, per the Washington Post. "Everybody basically knows that flavors are particularly dangerous in terms of kids starting the use of smoking products
- The agency says the vaping companies were denied because they couldn't show flavored vapes had a net public benefit, as laid out in the law. It has approved some tobacco-flavored vapes, and recently allowed its first menthol-flavored electronic cigarettes for adult smokers. The issue came before the high court when the agency appealed a decision from the conservative 5th Circuit Court of Appeals tossing out one of its denials.
- Justice Neil Gorsuch questioned whether the FDA process had given the companies a fair chance to make their claims, given that their businesses were at stake. Conservative Justice Brett Kavanaugh also expressed concern about what recourse companies have if agencies issue misleading guidance, though he also elicited that the FDA wasn't required to issue the guidance it gave in the vaping case. "I'm trying to figure out what the legal error is here," he said.
- The conservative-majority court has overall been skeptical of the power of federal regulators, including by striking down the so-called Chevron doctrine that had judges deferring to agencies' interpretation of the law. Justice Amy Coney Barrett questioned whether the vaping companies wanted the court to take that concept a step further. "It's almost a reverse Chevron deference, except we're deferring to the applicant," she said.
The court is expected to decide the case in the coming months.
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