Sweet-tasting e-cigarettes were dealt a blow this week by the U.S. Supreme Court, but that might not be the end of the battle to keep them out of the hands of kids. This week, an expert joined KCBS Radio to help explain what the ruling means.
“This is not a short opinion,” said Rory Little, legal analyst and professor at UC College of the Law San Francisco, adding that it goes on for 46 pages that “would read like Geek to most people.”
It was penned by Justice Samuel Alito and it concerned whether the Food and Drug Administration lawfully denied respondents authorization to market certain e-cigarettes, also known as vapes that feature aerosols heated in battery-powered devices that are inhaled by users. Specifically, it focused on fruit, candy, and dessert flavored products that appeal to nonsmokers and younger consumers.
Last December, Audacy reported on youth use of vapes. At that time, research showed that more than 2.1 million American middle and high school students said that they used vapes over the past year.
“We’re really concerned about youth vaping for a few reasons,” said Dr.
Pamela Ling director of the UCSF Center for Tobacco Control Research and Education, told Audacy. “One is that after vapes were introduced by 2018, we had a huge rise in the numbers of young people vaping. And even though those numbers have now come down somewhat, vapes are by far the most common tobacco product used by young people, far more than cigarettes.”
Data shows that flavored vapes are also more popular with younger Americans. In fact, out of the American middle and high schoolers who said they vaped in 2023, 90% said they used flavored vapes.
“Vapes are really enticing for young people to get started, even if they don't intend to become addicted to the product,” Ling explained.
In his opinion, Alito said: “In light of the statutory text and the well-documented and serious risks flavored e-cigarette products pose to youth, it should have come as no surprise that applicants would need to submit rigorous scientific evidence showing that the benefits of their products would outweigh those risks,” to the FDA. His follow justices unanimously agreed.
“Fruit, candy and dessert-flavored liquids have been repeatedly shown to appeal to youth and young adults, trapping them early in a cycle of nicotine addiction. Findings from the 2024 National Youth Tobacco Survey show that an alarming 87.6% of students who use e-cigarettes prefer flavored products,” said Nancy Brown, CEO of the American Heart Association, who applauded the court’s decision.
Little noted that “this issue of regulating tobacco has been going on for a century in some sense.”
He said that Congress passed a law in 2009 that prohibited the banning of tobacco products, but required new products to be evaluated and balanced about effects on public health. After the FDA basically denied approval for the sweet-flavored vapes in 2021, the full U.S. Court of Appeals for the 5th Circuit set aside the FDA’s denial, per Howe on the Court.
With its ruling this week, the Supreme Court has sent the case back to the Fifth Circuit.
“This has been sent back yesterday to the Fifth Circuit for them to decide whether harmless air protects what the FDA did,” Little told Audacy. “The Supreme Court seemed to be indicating pretty strongly that they think the FDA was right here. But technically, it’s back in front of the fifth circuit they could decide this again against the government.”
Despite unanimous agreement from the Supreme Court, Little said that the vaping market is huge. He also said e-cigarette companies have money to keep fighting the issue. Beyond flavored vaping, he said there are other concerns that the case highlights as well.
“You know, the big threat right now is that President [Donald] Trump is cutting back on staff for our regulatory agencies, like the Food and Drug Administration in this case, and that they won’t do as good a job in protecting the public health,” Little said. “So, we’ll see what happens when this goes. You know, back in front of the FDA, and the tobacco industry is not going to give up on these cases, and President Trump could change this sort of way this works. So, this is a breath of relief, if you will, for public health, but it’s not the end of the game.”