The Supreme Court wrestled Monday with the Biden administration’s decision to deny approvals of flavored vaping products in a case that could deal another blow to the power of executive agencies.
During oral arguments, the justices considered whether the Food and Drug Administration had done enough to notify applicants what evidence was required to secure approval for their products.
The case — FDA v. Wages and White Lion Investments — centers on the Administrative Procedure Act, a law that requires agencies to follow certain steps to involve and inform the public in decisionmaking. The law was instrumental in halting many environmental rollbacks during President-elect Donald Trump’s first term.
Monday’s argument also follows a spate of recent Supreme Court rulings that have handcuffed federal agencies like EPA from reaching decisions on important issues.
Some members of the court’s conservative supermajority on Monday appeared to agree with a ruling by the 5th U.S. Circuit Court of Appeals that the Biden FDA skipped some APA requirements when it rejected plans to market new e-cigarette products in flavors like “Jimmy the Juice Man Peachy Strawberry,” “Killer Kustard Blueberry” and “Mother’s Milk and Cookies” out of concern that the options would draw young users.
Justice Clarence Thomas asked an attorney representing FDA whether the agency’s guidelines were “actually moving targets — that either they weren’t clear or that you changed the guidance.”
Curtis Gannon, deputy solicitor general arguing for the agency, responded that a federal law passed by Congress — not an FDA regulation — had made it clear to the vaping industry that it must provide evidence of the potential benefits of flavored products helping adults reduce smoking, measured against the potential cost of attracting youth.
Requiring those studies didn’t constitute a change in the agency’s decisionmaking that must be communicated to the public, Gannon said.
Chief Justice John Roberts asked whether FDA is required to give applicants notice on how to comply with the agency’s regulations on approvals.
“No,” Gannon responded, “we could have given no guidance, and FDA would have been applying the statutory requirement here.”
But at least one member of the court’s conservative wing, Justice Brett Kavanaugh, appeared to agree with his liberal colleagues that the statute at issue in the case gave FDA all the support it needed to deny its decision on flavored vaping products.
Another one of the court’s moderate conservatives, Justice Amy Coney Barrett, asked Gannon whether FDA’s position is consistent with prior case law. Later in the argument, however, she questioned whether the vaping industry was presenting a “reverse Chevron” argument that the court should defer to the rejected applicants.
The court issued a decision earlier this year that overturned Chevron deference, a doctrine that instructed judges to give leeway to federal agencies’ interpretations of ambiguous rules.
Eric Heyer, a partner at Thompson Hine representing the vaping industry, responded that his clients were making no such argument.
“This was in fact a flip-flop” by FDA, he said.
Kavanaugh also appeared skeptical that the high court could fix the harm industry challengers say they suffered as a result of FDA’s denial.
The case is likely to be decided after Trump returns to the White House. The president-elect has promised to protect the vaping industry — a point Heyer raised during oral arguments.
Kavanaugh questioned whether the court had to rule in his client’s favor in order to make way for the new administration to reach a different decision on flavored e-cigarettes.
“You could reapply, and all that could happen through that process,” Kavanaugh said.
Heyer responded that the effect of FDA’s denial is punitive, since his clients can’t afford to wait the three to four years it could take the agency to revisit its decision.
“This was their one shot,” he said.
