Supreme Court Hears Arguments on Kid-friendly Vapes

A case just went before the Supreme Court that could be a game-changer in terms of the oversight of the Food and Drug Administration (FDA).

The court heard arguments regarding the FDA’s right to reject flavored e-cigarettes that are attracting younger people to the product.

The court was split, but it did seem like it was entertaining the idea of allowing the FDA to ban these products.

Overreach?

The subject here is whether the FDA's ban on flavoring vaping products was legal.

The tobacco industry is arguing that the FDA continues to move the goalposts without giving enough, or any, notice.

Attorney Eric Heyer argued, "FDA switched its position on what studies were required" to support the use of vapes benefiting existing smokers versus the risks the products posed to youth.

Justice Clarence Thomas appears to be leaning in favor of the vape manufacturers, stating, "Their argument is that the guidance was actually a moving target, that either they weren't clear or you changed the guidance as time went on.”

Justice Elena Kagan was not pleased with Hayer’s argument, stating, "I guess I'm not really seeing what the surprise is here, or what the change is here.

"There's just not a lot of mystery here about what FDA was doing. You might disagree with that, because you think that, in fact, the world of 40-year-olds really wants to do blueberry vaping, but you can't say that FDA hasn't told you all about what it's thinking in this respect."

If Justice Kavanaugh winds up being the swing vote, he seemed sympathetic to the vape manufacturers, but he also understood the position of the FDA, making me think that is how he will side.

He stated, "If the agency says [your claims of benefits to adult smokers] that doesn't outweigh the harm to youth, we've reviewed everything, we're aware of everything, of course they're aware of everything that's out there, that's kind of the end of it, isn't it?"

Vape manufacturers are clearly marketing these products in a way that makes them more attractive to younger users, and I think that is ultimately what will decide this case.

I am going to lean toward the FDA on this one, thinking that, at the very least, Kavanaugh and Roberts will walk across the aisle.