It is “imperative to public health” that the U.S. Supreme Court reverse a lower-court decision to protect the nation’s youth—and all members of the public—from flavored e-cigarettes, physicians and others tell the nation’s highest court.
The Litigation Center of the American Medical Association and State Medical Societies joined 10 other medical, public health and community organizations in filing an amicus brief (PDF) asking the court to overturn a 5th U.S. Circuit Court of Appeals ruling on e-cigarettes. That appellate-court ruling said the Food and Drug Administration (FDA) failed to follow the right procedures when it told two applicants that they could not put certain flavored e-cigarette liquids on the market.
“That judgment, if allowed to stand, would significantly undermine the FDA’s efforts to protect youth from the health harms of flavored e-cigarette products,” the AMA Litigation Center and others said in the brief they filed in the case, Food and Drug Administration v. Wages and White Lion Investments LLC, dba Triton Distribution. “Respondents’ e-liquids and other flavored e-cigarette products have fueled persistently high rates of youth usage of highly addictive and harmful products.”
The brief tells the court that young people’s use of e-cigarettes is a public health crisis. More than 2.1 million youth—including 10% of high schoolers—reported using e-cigarettes in 2023. Among the middle and high schoolers who use e-cigarettes, 90% report that they use flavored products, not tobacco-flavored products.
In this instance, the AMA Litigation Center and others say, the FDA rightly denied Triton Distribution’s request to market nicotine e-liquids with flavors clearly designed to appeal to kids: “Jimmy the Juice Man Peachy Strawberry,” “suicide Bunny Mother’s Milk and Cookies,” “Pink Lemonade,” “Iced Pineapple Express” and “Killer Kustard Blueberry.”
“The tobacco industry has long known that flavors are important to its ability to successfully market its products to young people,” the brief says. “As FDA has denied applications for marketing authorization of flavored e-cigarettes in recent years, youth e-cigarette use has declined, but remains unacceptably high today.”
In addition to the AMA Litigation Center, the other organizations joining the brief were: the American Academy of Family Physicians, American Academy of Pediatrics, American Cancer Society Cancer Action Network, American Heart Association, American Lung Association, American Thoracic Society, Campaign for Tobacco-Free Kids, Louisiana State Medical Society, Parents Against Vaping E-Cigarettes and Truth Initiative.
Find out more about the cases in which the AMA Litigation Center is providing assistance and learn about the Litigation Center’s case-selection criteria.
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FDA ruled correctly
The leading tobacco product among young people since 2014? E-cigarettes. The e-liquids contain nicotine, “among the most addictive substances used by humans,” the brief tells the court.
FDA studies have found that nicotine can induce short and long-term deficits in attention, learning and other memory when young people use it. There are also associations between e-cigarette use and self-reported histories of asthma, chronic bronchitis, emphysema or chronic obstructive pulmonary disease. On top of that, the increased use of e-cigarettes relates to increased odds of disease.
Meanwhile, another report found that between 2013 and 2016, young people who used e-cigarettes were more than four times more likely to try combustible cigarettes and nearly three times more likely to be current combustible cigarette users.
When the FDA told Triton Distribution they couldn’t market their products, it based its decision on “overwhelming evidence” that flavored e-cigarette products harm youth and that they don’t benefit adults who smoke, the brief from the AMA Litigation Center and others says.
“The FDA’s decision was not arbitrary and capricious,” according to the brief. The agency made its decision after the company didn’t show any evidence of flavored e-cigarettes’ health benefits or any evidence that the company could adequately restrict young people from using their products.
“When FDA’s regulatory oversight and action increased, youth use began to subside. Between 2020 and 2023, high school e-cigarette use prevalence declined from 19.6% to 10%,” the brief informs the court. “The decline began with FDA’s January 2020 guidance prioritizing enforcement against certain flavored cartridge-based products … and continued as the agency issued MDOs [marketing denial orders] for flavored e-cigarettes beginning in August 2021.”
