The suit filed by Triton and Vapetasia LLC claimed the FDA had essentially moved the goalpost in the midst of its review of the companies’ products.
These included vapes with names like “Jimmy The Juice Man Strawberry Astronaut” and “Suicide Bunny Mother’s Milk and Cookies,” coming in flavors of sour grape, pink lemonade and creme brulee.
Several lower courts all ruled in favor of the FDA, but the ultra-conservative U.S. Court of Appeals for the 5th Circuit agreed with the plaintiffs, claiming the companies were told the agency required certain studies but then changed its mind and required different studies.
Conservative Supreme Court justices on Monday focused in on this same issue, but a majority of the bench was unsympathetic to the argument.
Justice Brett Kavanaugh pushed back at the vaping company attorney, joining the liberal justices in noting that the FDA had been clear from the outset it was making decisions based on whether the products appealed to young people.
“FDA has been pretty upfront about this,” Justice Elena Kagan told the companies’ lawyer, Eric Heyer.
“There’s just not a lot of mystery here about what FDA was doing. You might disagree with that. But you can’t say FDA hasn’t told you all about what it was thinking,” she added.
But looming over the case is the future of the FDA’s approach to vaping. President-elect Trump has vowed to “save vaping,” though his administration in 2020 attempted to restrict flavored vaping products.
