SCOTUS to decide: Should candy-flavored vapes stay on shelves?

On Monday, the Supreme Court will hear arguments on whether to overturn a 2020 ban on flavored reusable e-cigarettes.

The case comes after the Food and Drug Administration (FDA) blocked more than a million marketing applications for vapes—flavors like “Jimmy the Juice Man Peachy Strawberry,” “Killer Kustard,” and “Iced Pineapple Express”—that appealed to teen users.

Now, the Supreme Court will have to decide whether the FDA’s actions were too restrictive, imposed unclear guidelines, or were in any way unlawful.

The organization’s aggressive efforts appear to have driven teen vaping numbers down significantly in recent years. In September 2024, teen vaping rate fell to under 6%, down from 7.7% in 2023. Those numbers are far lower than where they stood in 2019, when teen vaping reached its peak. At the time, around 25% of high school students reported using e-cigarettes.

Marketing harmful products to teens is not only questionable but often illegal, as outlined in the Tobacco Control Act. Over the years, the FDA has tightened restrictions on flavored products, including mint, bubblegum, vanilla, and strawberry, to curb their appeal to minors. In 2020, regulators banned fruit and candy flavors in reusable e-cigarettes like Juul, giving the FDA authority to deny applications for similar products. However, Monday’s case could challenge these restrictions, despite ongoing legal actions against companies targeting youth. For instance, in 2022, Juul Labs agreed to pay nearly $440 million to settle a two-year investigation by 33 states into its marketing practices.

While most of the lower courts sided with the FDA’s ban, others have pushed back. The conservative 5th U.S. Circuit Court of Appeals has challenged the FDA, and even threatened to allow all vaping-product manufacturers to keep their products on the market. The court sided with two e-cigarette companies who attempted to have flavored vapes approved, Triton Distribution and Vapetasia LLC, and said the FDA sent manufacturers “on a wild goose chase.”

In September, President-elect Trump asserted he would “save vaping again” in a Truth Social post. “I saved flavored vaping in 2019, and it greatly helped people get off smoking. I raised the age to 21, keeping it away from the ‘kids.’ Kamala and Joe want everything banned, killing small businesses all over the country. I’ll save vaping again!” Trump wrote.

In order to get products approved, companies must be able to show the product’s benefits outweigh potential risks. Currently, the FDA only allows vapes that come in menthol and tobacco, claiming those flavors are the ones that help adults switch from regular cigarettes, and are not likely to attract teen users.

In spite of the ban, plenty of other disposable products that offer the same kinds of flavors remain legal. Some popular brands are Elf Bar, Breeze, Hyde, Puff Bar, Sirius, VaporLax, and more.