FDA regulation of e-cigarettes may continue after Supreme Court refuses to hear case

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FDA may continue to regulate e-cigarettes after Supreme Court refuses to hear case arguing agency has too much authority over vape industry

  • In 2009, Congress gave the FDA broad power to regulate tobacco products, including restricting ingredients and blocking the sale of certain products.
  • The FDA expanded its authority in 2016, saying it would regulate e-cigarettes and vape pens
  • Big Times Vapes Inc, a Mississippi vape retailer, has filed an appeal to the Supreme Court, alleging that Congress has violated the Constitution
  • The appeal is said to have limited the government’s power to regulate the vapor industry, but the Supreme Court dismissed the case on Monday.

The U.S. Food and Drug Administration (FDA)’s regulation of e-cigarettes may continue after the Supreme Court declined Monday to hear a case that would have limited the government’s powers to oversee the vape industry.

The appeal of Big Times Vapes Inc, a Mississippi vape retailer, revolves around the 2009 Tobacco Control Act (TCA) in which Congress gave the FDA broad authority to regulate tobacco products.

This allowed the federal agency to restrict ingredients, block the sale of certain products and restrict advertising.

In 2016, the FDA said it would start regulating e-cigarettes, vape pens, cigars and bongs because they were all classified as “tobacco products” under federal law.

Big Time Vapes argued that Congress had violated the US Constitution by giving the FDA such far-reaching power.

Big Times Vapes Inc, a Mississippi vape retailer, has appealed to the Supreme Court arguing that Congress violated the Constitution by giving the FDA the power to regulate the vape industry, but the Supreme Court dismissed the case (file image)

Big Times Vapes Inc, a Mississippi vape retailer, has appealed to the Supreme Court arguing that Congress violated the Constitution by giving the FDA the power to regulate the vape industry, but the Supreme Court dismissed the case (file image)

“The power to decide under what circumstances a particular activity or product will be subject to federal regulation is typically a legislative policy,” the company wrote. Bloomberg.

Big Times Vapes also argued that the law did not provide the FDA with “guidance on the circumstances under which the Secretary should regulate additional products.”

The company says this means decisions, such as blocking the sale of new products, fell under the FDA’s “unbridled discretion.”

In response, the FDA argued that the law allowed the agency to regulate products that could lead to nicotine addiction.

“In the definitions, findings and statement of purpose it has included in the TCA, Congress has set forth understandable principles with appropriate limits for the FDA to apply,” the FDA wrote in a brief, according to Fox Business.

‘[T]The FDA should comprehensively regulate the tobacco industry to protect the public from nicotine addiction, tobacco-related health risks, and false and misleading advertising — with a particular emphasis on protecting children from such dangers.”

According to Bloomberg, the administration of President Joe Biden argued that the Supreme Court should not hear the appeal.

Officials argued that the FDA should protect the public, especially children, from health risks and false advertising.

“In the definitions, findings and statement of purpose it has included in the TCA, Congress has set forth understandable principles with appropriate limits for the FDA to apply,” Acting U.S. Attorney General Elizabeth Prelogar wrote in court documents viewed by Bloomberg.

“That’s more than Congress had to do to comply with the non-delegation doctrine.”

According to the Centers for Disease Control and Prevention, e-cigarette use has skyrocketed since they were introduced to the US market in 2007.

And they remain the most widely used tobacco product among American teens.

A recent CDC report found that nearly 20 percent of high school students use e-cigarettes and other vapor products.

This means that they have surpassed cigarettes, cigars, chewing tobacco and other conventional products in popularity in that age group.

Some studies have found e-cigarettes to have negative health effects, while others consider them healthier than combustible tobacco products.

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