Vaping is frowned on at the Supreme Court, but that could change with Trump

The FDA has a monopoly in vaping product development: Why does the Fifth Circuit have to act so badly? Commentary of Jonathan Adler

The Fifth Circuit decision “threatened to allow all vaping product manufacturers to put their products on the market and keep their products on the market,” says Adler.

To date, only 27 vaping products have been approved, out of hundreds of thousands of submissions, largely because the agency concluded that there was no way to allow flavored e-cigarettes to be marketed without harming large numbers of children.

Jonathan Adler, a law professor who has written extensively about this subject, states that the FDA has been acting in an ad hoc, unfair manner in the way it’s been evaluating all these applications for what areliterally millions of vaping products.

The companies claim the rules are arbitrary and violate federal law because the demands of the agency have changed.

Seven appeals courts have, for the most part, approved the FDA’s decisions and two have at least partially rejected those decisions. But one appeals court, the ultra-conservative Fifth Circuit Court of Appeals, rejected virtually every aspect of the FDA’s decision-making process, eviscerating the agency’s conduct as a “surprise switcheroo” in which companies were told that the FDA required certain studies, including marketing studies, but then changed its mind.

According to the FDA and Centers for Disease Control and Prevention’s national surveys, the percentage of high school kids who said they were daily Vaping increased from 4.7% in the first year to 30% in the second year.

Teenagers do know much about vaping, so if you don’t know anything at all, you should know that. Vaping is inhaling a mist of mist from an electronic cigarette or other similar device that causes it to look like smoke by heating the liquid with nicotine. It is an alternative that helps smokers get off more damaging tobacco cigarettes, but it is also a product that has become more popular with high school and middle school kids.

Do Small Businesses Have an Obligation to Tell People What They Can Do to Defend the Food and Drug Act?” Justice Roberts’s Question to the FDA

In the Supreme Court chamber on Monday, Chief Justice John Roberts asked Deputy Solicitor General Curtis Gannon, the government’s lawyer, whether the government has “an obligation to tell people what they have to do to comply with your regulation.”

The FDA gave these businesses notice that their business model is risky. As to the evidence the companies presented, “they were barking up the right tree,” said Gannon, but “they didn’t have sufficient scientific evidence” to satisfy the requirements in the statute.

Congress was concerned that most people who become addicted to nicotine start when they are under age, especially at a time when the adolescent brain is vulnerable to the effects of nicotine. Justice Jackson said that the statute was not a discretionary call of the FDA.

Many small companies will be forced to shut their doors due to the lack of approval of more flavors by the justices, according to Lawyer Eric Heyer. The FDA tried to document this and it’s not clear how appealing it is to 16 year olds, not 40 year olds.