Earlier this month, 20 Democratic state attorneys general (AG) filed an amicus brief supporting the U.S. Food and Drug Administration’s (FDA) marketing denial orders (MDOs) of premarket tobacco applications (PMTAs) for flavored electronic nicotine delivery systems (ENDS or e-cigarettes) currently under review by the U.S. Supreme Court. The brief not only demonstrates which side these states support, but also identifies specific enforcement priorities for these states.

We previously reported that, in January, the full U.S. Court of Appeals for the Fifth Circuit set aside the FDA’s MDO of PMTAs for flavored e-cigarettes, submitted by Wages and White Lion Investments, LLC, dba Triton Distribution, and Vapetasia, LLC, and remanded the matter to FDA for further review. On March 19, however, the U.S. solicitor general, on behalf of FDA, filed a petition for writ of certiorari with the U.S. Supreme Court asking the Court to consider whether the Fifth Circuit erroneously set aside FDA’s MDOs. On July 2, the Court granted the petition.

Since the Court granted the petition, several organizations have filed amici curae briefs in support of FDA. Notably, on September 3, a multistate coalition of 20 Democratic state AGs filed an amicus curae brief in support of FDA (the state AG brief). It is always helpful to understand arguments in amici curae briefs filed on behalf of state AGs because it can give us a sense of the types of tobacco product-related issues that are important to them and potentially indicate the states’ enforcement priorities. Below is a summary of the arguments raised in the state AG brief.

  1. Health Risks of E-Cigarettes: The state AG brief asserts that e-cigarettes pose serious health risks, particularly to children, claiming they are linked to lung cancer, cardiovascular disease, and other health issues. The brief asserts that children are especially vulnerable, with studies showing higher addiction rates and more severe health impacts compared to adults.
  2. Youth Attraction to Flavored E-Cigarettes: The state AG brief asserts that flavored e-cigarettes are a significant driver of youth tobacco use, citing surveys and studies indicating that young users prefer flavored e-cigarettes over nonflavored ones, leading to higher initiation and continued use among minors.
  3. State and Local Efforts: Various states have enacted measures to restrict the sale of flavored e-cigarettes, but these products continue to flow through interstate commerce, undermining state efforts. Online sales further complicate enforcement.
  4. Federal Authority and the FDA’s Role: The FDA’s statutory authority to regulate new tobacco products, including flavored e-cigarettes, is crucial. The Family Smoking Prevention and Tobacco Control Act empowers the FDA to prevent harmful products from entering the market unless they are proven to protect public health. The state AG brief asserts that FDA’s denial of applications for new flavored e-cigarettes aligns with this mandate and supports state efforts to protect youth.
  5. Collaboration Between States and Federal Government: The combined efforts of state regulations and federal oversight have made progress in reducing youth e-cigarette use. However, continued federal action is essential to fully address the issue and prevent flavored e-cigarettes from reaching minors.

The state AG brief concludes by urging the Supreme Court to reverse the Fifth Circuit’s judgment and uphold the FDA’s authority to regulate flavored e-cigarettes to protect public health, particularly that of children.

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In recent years, some states have passed legislation banning the retail sale of flavored tobacco products, including e-cigarettes, or imposing additional restrictions on advertising such products to minors. Over the last year, several states have also passed legislation requiring manufacturers to certify their e-cigarette brands, including whether they have submitted premarket tobacco product applications to FDA requesting authorization to market those products in the U.S. The state AG brief is yet another example of some states using various legal tools to restrict or ban the sale of flavored tobacco products in their states. We expect many states, such as those that joined the state AG brief, to continue to prioritize enforcement actions against sellers of flavored e-cigarettes when their laws allow them to do so.