Court sides with the FDA in its dispute over sweet-flavored vaping products

U.S. Law Review

The Supreme Court on Wednesday ruled for the Food and Drug Administration in its crackdown on sweet-flavored vaping products following a surge in teen electronic cigarette use.

But the justices’ unanimous decision throwing out a federal appeals court ruling is not the final word in the case, and the FDA could change its approach now that President Donald Trump has promised to “save” vaping.

The high court ruled that the FDA, during President Joe Biden’s administration, did not violate federal law when it denied an application from Dallas-based company Triton Distribution to sell e-juices like “Jimmy The Juice Man in Peachy Strawberry” and “Suicide Bunny Mother’s Milk and Cookies.” The products are heated by an e-cigarette to create an inhalable aerosol.

Yolonda Richardson, president and CEO of the Campaign for Tobacco-Free Kids, called the decision “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.”

The FDA has rejected applications for more than a million nicotine products formulated to taste like fruit, dessert or candy because their makers couldn’t show that flavored vapes had a net public benefit, as required by law.

It has approved some tobacco-flavored vapes, and recently it allowed its first menthol-flavored e-cigarettes for adult smokers after the company provided data showing the product was more helpful in quitting.

But the conservative 5th U.S. Circuit Court of Appeals sided with Triton, agreeing that the FDA changed its standards with little warning in violation of federal law.

While mainly ruling for the FDA on Wednesday, the Supreme Court noted that the agency had said the company’s marketing plan would be an important factor in evaluating its application. But it ultimately did not consider the marketing plan, Justice Samuel Alito wrote for the court.

Attorney Eric Heyer, who represented the company, expressed disappointment with the ruling but said Triton believes “in the great harm reduction potential” of the products and plans to continue litigation.

The appeals court was ordered to consider if the failure to do so is an important mistake that might still lead to a decision in Triton’s favor.

The FDA has so far not instituted changes to its polices on vaping. But on Tuesday, the FDA’s top tobacco regulator, Brian King, was removed from his post amid sweeping cuts to the federal health workforce that have cleared out many of the nation’s leading health experts. King oversaw hundreds of warning letters issued to companies that make, sell and distribute flavored vapes.

Related listings

USCIS Adjusting Premium Processing Fee

U.S. Citizenship and Immigration Services (USCIS) announced today it is adjusting the premium processing fee for Form I-129, Petition for a Nonimmigrant Worker and Form I-140, Immigrant Petition for Alien Workers beginning on Oct. 1, 2018 to more effectively adjudicate petitions and maintain effective service to petitioners.

The premium processing fee will increase to $1,410, a 14.92 percent increase (after rounding) from the current fee of $1,225. This increase, which is done in accordance with the Immigration and Nationality Act, represents the percentage change in inflation since the fee was last increased in 2010 based on the Consumer Price Index for all Urban Consumers.

“Because premium processing fees have not been adjusted since 2010, our ability to improve the adjudications and service processes for all petitioners has been hindered as we’ve experienced significantly higher demand for immigration benefits. Ultimately, adjusting the premium processing fee will allow us to continue making necessary investments in staff and technology to administer various immigration benefit requests more effectively and efficiently,” said Chief Financial Officer Joseph Moore. “USCIS will continue adjudicating all petitions on a case-by-case basis to determine if they meet all standards required under applicable law, policies, and regulations.”

Premium processing is an optional service that is currently authorized for certain petitioners filing Forms I-129 or I-140. The system allows petitioners to request 15-day processing of certain employment-based immigration benefit requests if they pay an extra fee. The premium processing fee is paid in addition to the base filing fee and any other applicable fees, which cannot be waived.