They come in varieties that include categories like minty, smooth, fruity, and dessert. Names offer strange and enticing options such as Meteor Milk, OMG, Lemon Killer Kustard, Candy Kahuna, and Grape Gummy Bear. They may sound like flavors for lip balm or a sugary drink, but they're all varieties of e-cigarettes.
The Food and Drug Administration (FDA), which had rejected hundreds of thousands of applications for flavored e-cigarettes on the basis that their attractiveness to young people didn't outweigh their alleged health benefits over ordinary cigarettes, found itself on the losing end of a ruling from the Fifth Circuit Court of Appeals in 2024.
With redemption provided by a unanimous decision from the U.S. Supreme Court on April 2, 2025, the FDA can resume its regulation and oversight of e-cigarette products. Accomplishing those tasks after the recent gutting of the FDA's staff and resources may prove a difficult challenge to overcome.
A Better Option?
E-cigarettes, also known as electronic cigarettes and vapes, first appeared in the United States in 2006. Touted as both a safer alternative to smoking cigarettes and a way to quit smoking altogether, e-cigarettes began facing bans around the world even as they grew in popularity in the U.S.
In June 2009, President Barack Obama signed the Family Smoking Prevention and Tobacco Control Act into law. This gives the FDA the power to regulate tobacco products and dictates that all new items must meet FDA standards. While the FDA can't ban most nicotine and tobacco products, it has the power to do so with those containing flavorings marketed to children and young adults.
In 2011, the FDA announced it would start regulating e-cigarettes the same way it did cigarettes under the Food, Drug, and Cosmetics Act. This was followed by the agency ruling in 2016 that e-cigarettes required the same marketing authorization required for cigarettes and other tobacco products. In 2021, the FDA would deny over one million tobacco-based applications.
While many e-cigarettes were approved, the FDA cracked down on those it considered targeted at youthful users and potential users. These included those with sweet flavors designed to mimic the taste of candy, desserts, and other sweets.
In 2024, two manufacturers of e-cigarette products won an appeal in the Fifth Circuit Court after the FDA's decision to ban their products had originally been upheld. The panel accused the FDA of being "capricious" and guilty of "switcheroos" with their rulings and regulations.
The FDA overcame this setback with the April 2, 2025 ruling by the U.S. Supreme Court. The unanimous decision reaffirmed the agency's policies and standards for protecting children from the targeted marketing of e-cigarettes. In sending the case back to the Fifth Circuit, the Court emphasized that the FDA hadn't been arbitrary in its decisions.
Who Shall Man the Battlements?
Recent numbers showed teenage e-cigarette usage falling to the lowest levels in a decade, but manufacturers have cause to celebrate despite that and the Supreme Court's decision. This comes as the Trump administration's layoffs at both the FDA and the Centers for Disease Control (CDC) mean fewer regulators are available to monitor the e-cigarette industry.
One out of every five teenagers has tried a vaping product. With tempting flavors like Blue Razz Ice and Bubble Gum operating under less oversight, that ratio may quickly increase.
Related Resources
- Top Laws and Regulations To Know if You Vape (FindLaw's Law and Daily Life)
- Tobacco Smoking Injury Dangers (FindLaw's Product Liability Law)
- Legal Guide to Workplace Smoking: What Are Your Rights at Work? (FindLaw's Workplace Safety)
