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U.S. Supreme Court to Hear Challenge to Flavored Vapor Denials

The FDA appealed a Fifth Circuit decision that ruled the agency employed arbitrary and unfair standards against flavored vapor products.
Judge hammering disposable vape with referee's gavel on white table. ; Shutterstock ID 2194172063

WASHINGTON, D.C. — The Supreme Court has agreed to take up a U.S. Food and Drug Administration (FDA) appeal following a Fifth Circuit ruling which sided with vape companies against the agency.

The lower court decision found the FDA's denial of pre-market tobacco applications for sweet-flavored liquids used in e-cigarettes used arbitrary and unfair standards requiring the companies, without warning, to present studies showing that flavored products would help with smoking cessation, according to the Associated Press.

[Read more: Federal Agents Seize $1M-Plus Worth of Unauthorized Vapor Products]

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The agency countered it was adhering to the requirements set forward in the Family Smoking Prevention and Tobacco Control Act, which includes the authority to regulate and restrict marketing tobacco products to youth. As AP reported, the FDA had pointed out the companies were blocked because they couldn't show the possible benefits for adult smokers outweighed the risk of underage use. 

Though the Fifth Circuit decision is an outlier for other suits brought against the FDA, the finding led to a split in the circuit courts, likely playing a role in the Supreme Court's decision to take up the appeal.

The FDA plans to undertake a sweeping review of the vaping industry and more strictly examine the effects of vaping on users, even as the agency has finally moved ahead on approving its first menthol flavored vapor products.

How the case may play out in the wake of two recent court decisions — Corner Post, Inc. v. Board of Governors of the Federal Reserve System and Loper Bright Enterprises v. Raimondo — remains up in the air. The latter overturned what had become known as the Chevron doctrine, which initially gave wide leeway to government agencies to interpret legislative standards. The former shifted the beginning of the statute of limitations from the date of a law's passage to the date of the initial asserted injury, opening the door to new companies potentially challenging decades-old regulation.

Though neither the court nor the agency has commented on the recent shift in power away from agency specialists to the courts, this will be one of the first cases to be decided in 40 years without the Chevron doctrine attached.

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