News from the Noteworthy from Tobacco Free Communities: Delaware, Otsego & Schoharie

SCOTUS Divided on Flavored Vape Decision

Last week, the U.S. Supreme Court heard arguments on a case that revisits whether flavored vape products pose a risk to children’s health. The case, “Food and Drug Administration v. Wages and White Lion Investments,” contends with whether the FDA had acted lawfully in rejecting applications from two manufacturers of new flavored liquids used in e-cigarettes. If the Supreme Court rules in the manufacturers’ favor, it could lead to flavored vape products being allowed back on the market. Given the data have shown for years that flavors in vapes tempt children into trying them, and the high concentrations of nicotine in most vapes quickly addict them, that outcome could adversely impact children’s health.

The two manufacturers’ attorneys claimed the FDA had changed their application requirements and misled them in what evidence the manufacturers needed to show their products did not pose a public health risk, including for children. Representing the FDA, Deputy Solicitor General Curtis Gannon argued the agency did pose a “known and substantial risk” to young people and had not found any evidence in the applications that the flavored e-liquids, with names such as “pink lemonade” and “crème brûlée,” would benefit adults who already smoke,” according to SCOTUSblog.com.

Some context for the case is in order. FDA was authorized in 2009 through the Tobacco Control Act to regulate tobacco products to protect public health. However, between 2010 and 2016, the FDA was mired in court proceedings that prevented it from regulating e-cigarettes. During that six-year period, the tobacco industry introduced thousands of flavors for e-cigarettes—many of which mimicked sweet, fruity, and minty candy and cereals consumed by kids—and increased the concentrations of nicotine in e-liquids, making e-cigarette use increasingly addictive. By 2016, e-cigarette use among youth had skyrocketed. The U.S. Surgeon General declared youth vaping an epidemic in December 2018.

The vaping epidemic and hundreds of fatalities from vaping led to Congress banning flavored e-cigarette cartridges in December 2019. The FDA also began regulating vaping products in January 2020 through its Premarket Tobacco Product Applications review process. It required manufacturers of new commercial tobacco products to receive the FDA’s authorization to market and sell their products by demonstrating that the marketing of their tobacco products would protect public health, especially preventing future generations from nicotine addiction. Because e-cigarettes were introduced as a smoking cessation device and continue to be marketed as such, the FDA also evaluates new e-cigarette products on whether they can assist adults in quitting tobacco products.

In the past five years, the FDA has rejected almost all of the millions of applications for fruit-, candy- and mint-flavored vape products, concluding that they posed too high a risk to children’s health and that vape manufacturers had not proved flavors added to vapes help adults quit tobacco use. Indeed, the agency has not approved any e-cigarettes as a cessation device. The 34 vape products the FDA has approved to date are either unflavored or menthol-flavored.

The FDA’s conclusions about flavored vape products’ impact on children’s health are grounded in data and numerous scientific studies. When youth under age 18—and even up to age 24—use addictive substances such as nicotine, they are much more likely to be addicted to them for a long time compared to adults over 24 years old. Vaping nicotine has proved harmful to adolescents’ brain development. The U.S. Centers for Disease Control warns nicotine use can “harm the parts of the [adolescent] brain that control attention, learning, mood, and impulse control.” Youth who vape nicotine may be at increased risk for future addiction to other drugs and smoking cigarettes.

Most youth think vaping is harmless because they assume they are inhaling water vapor. In reality, they are inhaling aerosols. The CDC reports vape aerosols can include cancer-causing chemicals, heavy metals such as nickel, tin, and lead, tiny particles that can be inhaled deep into the lungs, and flavorings such as diacetyl, a chemical linked to a serious lung disease.

E-cigarettes can pose a serious risk to small children. If they ingest even a miniscule amount of liquid nicotine from vapes, they can become sick and even die. The CDC reported in March 2024, “More than 80% of calls to U.S. poison control centers for e-cigarettes are for children less than 5 years old.”

The Supreme Court justices appeared divided on the case last week. In June 2025, they could rule to uphold the FDA’s rejection of the flavored vapes, order the FDA to re-evaluate the manufacturers’ applications with clearer rules, or even upend FDAs’ regulations and regulatory process. If SCOTUS chooses the last option, we could likely see flavored vapes once again flood the market, youth vaping rates soar again, and many more people struggling with nicotine addiction and other ailments.

Jennifer Hill is the community engagement coordinator for Tobacco Free Communities: Delaware, Otsego & Schoharie.