Health & Community Groups Urge Supreme Court to Overturn Flavored E-Cigarettes Ruling

On behalf of its client, the Campaign for Tobacco-Free Kids, and ten other prominent public health, medical, and community organizations, Zuckerman Spaeder LLP has filed an amicus brief supporting the Food and Drug Administration (FDA) in asking the U.S. Supreme Court to overturn a Fifth Circuit Court of Appeals decision regarding flavored e-cigarettes. Amici explain why allowing the decision in Food and Drug Administration v. Wages and White Lion Investments, LLC, d/b/a Triton Distribution (Triton) to stand would undermine Food and Drug Administration’s ability to protect young people from the health harms of flavored e-cigarettes.

In September 2020, FDA denied Triton’s applications for approval of a variety of flavored e-liquids for use in e-cigarettes. Triton appealed to the Fifth Circuit, which, following an en banc review of an earlier decision, struck down FDA’s marketing denial orders. In July, the Supreme Court agreed to hear FDA’s appeal of that decision.

According to amici, “E-cigarettes pose unique health risks for youth, as adolescent brains are more susceptible to nicotine’s effects due to ongoing neural development” and “[t]he tobacco industry has long known that flavors are important to its ability to successfully market its products to young people.”

The amicus brief will help the Court understand that overturning the Fifth Circuit is critical to preserve FDA’s ability to protect the public health, as it is required to do by the Tobacco Control Act. Amici explain that FDA’s decision to issue MDOs in this case was not arbitrary or capricious, because the Respondents did not present evidence that their products would benefit the public health—such as by helping adult smokers of conventional cigarettes quit—that could outweigh the public health risks of such products, especially for youth. As the brief states, “[a]llowing the Fifth Circuit decision to stand would leave more young people in the grip of nicotine addiction and exposed to the health harms of e-cigarettes. It is imperative to public health that this Court reverse [the Triton decision] to protect the public, and especially the nation’s youth, from flavored e-cigarettes.”

The brief cites research showing the high prevalence and dangers of e-cigarette use by young people, noting that over 2.1 million youth, including 10 percent of high schoolers, reported current e-cigarette use in 2023, and nearly 30 percent of high school users reported daily use. Importantly, amici point out that the use of flavored products has been steadily growing since 2015: in 2023 flavored products were used by over 90 percent of youth e-cigarette users.

The brief was submitted by the following organizations:

• American Academy of Family Physicians
• American Academy of Pediatrics
• American Cancer Society Cancer Action Network
• American Heart Association
• American Lung Association
• American Medical Association
• American Thoracic Society
• Campaign for Tobacco-Free Kids 
• Louisiana State Medical Society
• Parents Against Vaping E-cigarettes
• Truth Initiative

The amicus brief was prepared by Zuckerman Spaeder partners William B. Schultz, who previously served as General Counsel at the U.S. Department of Health and Human Services and Deputy Commissioner for Policy at FDA, and Andrew N. Goldfarb, along with associate Trillium E. Chang.