FDA to Keep Regulating Vaping Products After Supreme Court Rejects Industry Challenge

The Supreme Court on Monday declined to hear a challenge to the Food and Drug Administration’s authority to impose guidelines on the vaping industry, ensuring (for now, at least) that the agency will continue to regulate e-cigarettes and vaporizers as it sees fit.

The challenge — brought by a Mississippi vape store called Big Time Vapes, Inc., as well as the United States Vaping Association — alleges the 2009 Tobacco Control Act gives an unconstitutional amount of power to the FDA. The agency has broad discretion as to how it regulates the tobacco industry, from the contents of its products to how it advertises.

That mandate is so broad, the challenge claims, that it violates the Constitution’s non-delegation doctrine, which holds that Congress cannot delegate its legislative authority to other agencies without specific guidance. “The authority to decide the circumstances under which a given activity or product shall be subjected to federal regulation is quintessentially one of legislative policy,” Big Time Vapes, Inc., and the USVA argued, decrying the “unbridled discretion” wielded by the FDA.

The Biden administration argued the Tobacco Control Act is constitutional, however, as “Congress laid out intelligible principles with appropriate boundaries for FDA to apply.” Biden’s FDA has also cited the the public health issues posed by vaporizers and e-cigarettes, particularly to children, in defending the its authority to regulate the industry.

The FDA in 2016 served notice that it planned to regulate basically every aspect of the tobacco industry that it could — including including e-cigarettes and vaporizers. The agency immediately made it illegal to sell them to children under the age of 18, started conducting inspections of vape stores to make sure they were complying with regulations, and requiring products to be authorized before going on the market.

At the time, e-cigarettes and vaporizers were both exploding in popularity and evidence of how harmful they could be was mounting. “Vaping exposes users to many different substances for which we have little information about related harms — including flavorings, nicotine, cannabinoids, and solvents,” former Centers for Disease Control Director Robert Redfield said in 2019 following the first recorded death of someone who had come down with vaping-induced lung disease.

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