WASHINGTON (CN) — With all its rulings handed down for the term, the Supreme Court on Tuesday began filling out its upcoming docket with disputes over age verification laws on adult websites and approvals for flavored vapes.
The justices agreed to give the Food and Drug Administration another shot at blocking marketing authorizations for flavored e-cigarettes that the government fears will lead a new generation into tobacco addiction.
Vape flavors like Jimmy The Juice Man Peachy Strawberry, Signature Series Mom’s Pistachio and Suicide Bunny Mother’s Milk and Cookies pose too great a risk of attracting children to use e-cigarettes, the government says.
According to the FDA, about 20% of high school students and almost 5% of middle school students vaped in 2020. The government said studies found the flavor of e-cigarettes to be an incentive to take up the habit.
But the FDA argues the risks of attracting more youths to e-cigarettes outweighs any benefits touted by vape makers.
Under the Family Smoking Prevention and Tobacco Control Act, Congress gave the agency special regulatory authority to address the public health crisis that tobacco presented to young Americans. After 2007, any new tobacco product must obtain government authorization.
E-flavor maker Triton Distribution argued flavored vapes help adults kick smoking addictions. But the FDA determined that Triton’s new vape flavors are more likely to entice new users than assist existing smokers to switch to less dangerous alternatives, denying the company’s marketing application.
Triton challenged the denial. A Fifth Circuit panel initially rejected Triton’s argument that the FDA acted arbitrarily and capriciously but the en banc court reversed, finding 10-6 that the FDA unfairly surprised Triton with the types of evidence the company would be required to provide for the authorization.
Noting he Fifth Circuit’s ruling conflicts with findings by other appeals courts, the government urged the justices to step in.
“The decision … has far-reaching consequences for public health and threatens to undermine the Tobacco Control Act’s central objective of ‘ensuring that another generation of Americans does not become addicted to nicotine and tobacco products,’” U.S. Solicitor General Elizabeth Prelogar wrote in the government’s application.
Anti-tobacco organizations praised the justices’ decision to hear the appeal, saying the Fifth Circuit’s ruling would undermine government efforts to protect kids from the harms of e-cigarettes if left to stand.
“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,” Yolonda Richardson, president and CEO of Campaign for Tobacco-Free Kids, said in a statement.
Despite urging the justices to deny the government’s petition, Triton welcomed the court’s review.
“Triton looks forward to having the Supreme Court review FDA’s surprise, after-the-fact imposition of new study requirements and failure to follow its own guidance for applicants for marketing authorization for flavored ENDS products,” said Triton's attorney Eric Heyer, a partner at Thompson Hine’s Washington, D.C. office, in a statement on Tuesday.
Texas’ attempt to keep porn away from minors will also face Supreme Court scrutiny next term. The Lone Star State enacted an age verification law in 2023, forcing adult content sites to check users’ age before allowing them to view sexual content. The law also included an advisory on the health concerns of pornography.
Texas' anti-porn law was initially blocked but the Fifth Circuit put the rule back on the books, allowing Texas to begin suing porn producers that violate the law. The appeals court, however, prevented the state from forcing websites to display the law’s health warnings.
Facing $250,000 fines for any time a minor accessed their content in violation of the law, the porn producers asked the Supreme Court for emergency relief. The publishers argued the law violates the First Amendment by chilling adults’ access to protected sexual expression.
The justices declined to intervene in the emergency application but agreed to decide if the appeals court applied the correct standard when considering if the law should be put on hold.
In a set of appeals, the court also agreed to review how sentencing reductions should be applied under the First Step Act.
Per the court's custom, the justices did not explain their reasoning for agreeing to hear the appeals.
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