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The Supreme Court ruled unanimously Wednesday that the Food and Drug Administration properly rejected applications to market fruit- and dessert-flavored liquids for electronic cigarettes that the agency says are popular with young people and risk them getting hooked on nicotine.
The FDA had appealed a lower-court decision that said the agency unfairly shifted its standards for approving e-cigarettes liquids while ruling on applications from two companies wanting to sell new products with names such as "Jimmy the Juice Man Peachy Strawberry," "Suicide Bunny Mother's Milk and Cookies," "Iced Lemonade" and "Killer Kustard Blueberry."
Justice Samuel A. Alito Jr., who authored the opinion, wrote that the FDA rejection of the applications was "sufficiently consistent" with the guidance it had given companies seeking to win approval for such products. Alito also highlighted the potential dangers of flavored e-cigarettes.
"One nearly decade-old estimate found that there were 7,700 unique e-liquid flavors, including not only flavors that were familiar to cigarette smokers (tobacco and menthol) but also fruit, candy, and dessert flavors that were appealing to nonsmokers," Alito wrote. "The kaleidoscope of flavor options adds to the allure of e-cigarettes and has thus contributed to the booming demand for such products among young Americans."
An e-cigarette or vape is a battery-powered device that heats a nicotine-infused liquid, turning it into a vapor that is inhaled. E-cigarettes are generally considered less harmful than traditional cigarettes but still carry health risks.
The case marked a milestone in an ongoing battle between the FDA and a vaping industry worth billions of dollars. The agency has moved aggressively to regulate flavored vapes in recent years, rejecting more than 1 million fruit-, candy- and dessert-flavored products, according to court filings. Wednesday's ruling was also a somewhat rare example of the high court siding with government regulators, after a string of decisions trimming agency powers.
A 2024 Centers for Disease Control and Prevention survey found vapes were the most common tobacco product used by middle- and high-schoolers. About 1.6 million students use e-cigarettes, according to the survey, which amounts to about 6 percent of the middle- and high school population. Nearly 90 percent of those who vape prefer the flavored liquids, according to the survey. Overall, youth vaping has declined significantly after reaching a peak in 2019.
Health officials have said that addictive nicotine from vapes can influence the development of adolescent brains, affecting attention, learning and memory. Vaping may also be associated with asthma, chronic bronchitis and emphysema.
The FDA began regulating e-cigarettes as tobacco products in 2016, as public health officials expressed concern about a dramatic rise in youth vaping. The booming marketplace offered flavored liquids such as bubble gum, mocha and margarita that were enticing to kids.
Some experts have criticized the FDA's denials of e-cigarette products, arguing that the agency has refused to accept evidence that the products are not as harmful as once believed to be and that studies show e-cigarettes can help people quit smoking. The FDA has allowed the marketing of some menthol- and tobacco-flavored e-cigarettes because cigarette smokers say they want to use them to quit the habit.
Yolonda C. Richardson, president and CEO of the Campaign for Tobacco-Free Kids, praised the ruling and accused the companies of attempting to market "blatantly kid-friendly flavors."
"Today's ruling is a major victory for the health of America's kids and efforts to protect them from the flavored e-cigarettes that have fueled a youth nicotine addiction crisis," Richardson said in a statement. "It affirms that the FDA's marketing denials for flavored e-cigarettes have been legally and scientifically sound and should encourage FDA to stay the course."
Richardson said the FDA must to do more to crack down on thousands of illegally marketed flavored e-cigarettes that have flooded the market without the health agency's approval.
The high-court case revolved around the 2009 Family Smoking Prevention and Tobacco Control Act, which Congress passed to combat tobacco use among adolescents. The act requires any company marketing a new tobacco product not commercially available after 2007 to get approval from the FDA. Some flavored vapes available before 2007 were grandfathered in under the law.
Applicants must show that the product will be "appropriate for the protection of the public health." That means weighing the likelihood that the product will help existing smokers, usually adults, switch to less-dangerous alternatives against the risk that it will encourage new users, typically young people, to start smoking.
The FDA rejected the applications by Triton Distribution and Vapetasia to market the candy and dessert-flavored vapes in 2021, finding there was insufficient evidence to back the companies' contention that the benefits of the products - helping adults to quit - would outweigh their downside.
The companies appealed the denials to the Fifth Circuit Court of Appeals, arguing that the FDA was requiring more-rigorous scientific evidence of its claims than it initially announced, making it all but impossible for the companies to win approval.
The Fifth Circuit Court of Appeals sided with the companies, finding the FDA rejection was "arbitrary and capricious." The FDA then appealed to the Supreme Court.
After Wednesday's ruling, Tony Abboud, executive director of a trade association representing e-cigarettes companies, called on President Donald Trump to clarify regulation of e-cigarettes. Trump vowed to "save" the vaping industry while running for president in September.
"This ruling underscores the urgent need for decisive action from the Trump Administration to resolve ongoing - and future - litigation by eliminating once and for all the regulatory uncertainty plaguing the FDA," Abboud, of the Vapor Technology Association, said in a statement. "President Trump's FDA can establish clear and fair guidance that supports innovation and ensures the survival of the small businesses that make up the U.S. vaping industry."