Supreme Court to evaluate marketing of flavored vapes, effect on youth

Community health groups and medical providers are urging the Supreme Court to halt e-cigarette companies’ marketing of flavored vaping products, saying the businesses shouldn’t make electronic cigarettes attractive to minors.

Nearly a dozen medical, public health and community groups said the risks that e-cigarettes pose to youths outweigh any benefit for adults using them to quit cigarettes.

In a filing to the high court, the groups said the U.S. surgeon general found that nicotine exposure harms youths’ learning capabilities and memory and can lead to drug addiction.

“E-cigarettes pose unique health risks for youth, as adolescent brains are more susceptible to nicotine’s effects due to ongoing neural development. Adolescents are thus especially vulnerable to nicotine addiction, which can lead to permanent effects on the developing brain,” their filing said.

The groups support the federal government’s position against e-cigarette companies Triton Distribution and Vapetasia LLC in a case that will be argued before the justices on Monday.

The court will grapple with federal restrictions on advertising for flavored vapes to avoid marketing to minors.

In Food and Drug Administration v. Wages and White Lion Investments LLC, dba Triton Distribution, et al., the Food and Drug Administration denied marketing authorization for flavored e-cigarettes or vapes by Triton Distribution, which also has products sold by Vapetasia.

Solicitor General Elizabeth Prelogar, representing the FDA, said in her filing that Congress authorized the executive branch to protect those younger than 18 from tobacco through the Family Smoking Prevention and Tobacco Control Act.

Under the legislation, anyone who wants to introduce a new tobacco product into the market must receive authorization from the FDA. The agency can reject authorization if it finds no evidence that the product would support public health.

Triton wanted to market e-cigarettes with flavors such as Signature Series Mom’s Pistachio, Jimmy the Juice Man Peachy Strawberry and Suicide Bunny Mother’s Milk and Cookies.

The FDA rejected the company’s authorization request, reasoning that the harms outweighed any benefits.

Ms. Prelogar noted that nearly 20% of high school students use e-cigarettes.

“Studies had found that, when asked why they used e-cigarettes, ‘youth users consistently select[ed] flavors as a top reason,’” she said in her filing.

The companies said the flavors encourage adult smokers of traditional cigarettes to switch to their products.

“According to tobacco researchers, a ‘substantial proportion of vape shops are small businesses or single-store owners’ and many vape shop workers used vaping to quit smoking and want to help other smokers quit,” their brief read.

The companies said the FDA did not notify them of changes in standards for evaluating authorization requests for flavored vapes after issuing a rule in 2016 reclassifying their products and subjecting them to different guidelines.

Attorneys for the e-cigarette companies said the FDA’s rule violated the Administrative Procedures Act because it did not give their clients proper notice before denying their authorization.

The companies’ “applications included sales and marketing restriction plans designed to keep their e-liquids out of the hands of underage users,” they said.

The 5th U.S. Circuit Court of Appeals ruled against the FDA’s denial of the companies’ marketing authorizations, reasoning that the agency violated the Administrative Procedures Act.

A Supreme Court decision on flavored vape advertising standards is expected by the end of June when the justices wrap up their term.

The justices did not have an appetite to dive further into the marketing of tobacco products such as cigarettes. In a recent order, they turned away a challenge from the tobacco industry over a federal rule requiring them to post graphic images warning about the health risks of using their products.

The move leaves intact a lower court decision upholding federal requirements for cigarette companies to show images on their products, such as damaged lungs and head and neck cancer.

For oral arguments to have been granted, four justices would have had to vote to hear that dispute.