U.S. Supreme Court Agrees to Hear Case Involving FDA Marketing Denial Orders for Flavored E-Cigarettes

WASHINGTON, D.C. – The U.S. Supreme Court today granted the FDA’s request to review a decision by the en banc U.S. Court of Appeals for the Fifth Circuit that struck down FDA marketing denial orders for certain flavored e-liquids. The Campaign for Tobacco-Free Kids and eight other national public health, medical and community organizations filed an amicus brief in support of the FDA’s request. The case is FDA v. Wages and White Lion Investments, LLC, d/b/a Triton Distribution.

The Supreme Court should overturn the Fifth Circuit decision because it is misguided and, if left to stand, would cause significant harm to public health and especially to the health of our kids. This decision is also in direct conflict with the decisions of seven other federal courts of appeals that have upheld FDA marketing denial orders for flavored e-cigarettes.

This case involves products with flavors including “Jimmy the Juice Man Peachy Strawberry,” “Suicide Bunny Mother’s Milk and Cookies,” “Blackberry Lemonade,” “Iced Pineapple Express” and “Killer Kustard Blueberry.” These flavors obviously are intended to appeal to kids, and the FDA acted correctly in denying the marketing applications for these products. In its petition to the Supreme Court, the FDA argues persuasively that it followed the law in reviewing these marketing applications and found that the manufacturers had not provided sufficient evidence that marketing of the products would be appropriate for the protection of the public health, as required by law. In particular, the FDA pointed out the “known and substantial risks” that flavored products pose to youth and found there was “insufficient evidence that the benefits provided by the flavored e-cigarette products outweighed the risks they posed.”

Youth e-cigarette use remains a serious public health problem in the United States. According to the 2023 National Youth Tobacco Survey, 2.1 million kids use e-cigarettes and nearly 90% of them use flavored products, with the most-reported flavors including fruit, candy/desserts/other sweets, mint and menthol. As our amicus brief argues, if the Fifth Circuit’s decision is allowed to stand, it would significantly undermine FDA’s efforts to protect the health of children from the harms of flavored e-cigarettes. We will not end the youth e-cigarette crisis if flavors like peachy strawberry and milk and cookies are allowed to remain on the market.