A federal appeals court this week sided with several companies whose applications to sell nicotine vaping products in a variety of flavors were rejected by the Food and Drug Administration (FDA). As Reason's Elizabeth Nolan Brown noted yesterday, the U.S. Court of Appeals for the 11th Circuit ruled that the FDA's decisions were "arbitrary and capricious" because the agency ignored marketing and age-verification plans aimed at preventing underage vaping. But as Judge Robin Rosenbaum noted in her dissent, the manufacturers' victory probably will be short-lived, because the FDA seems dead set against allowing the sale of vaping products in flavors other than tobacco.
That position is puzzling, since former smokers who have switched to vaping overwhelmingly prefer nontobacco flavors, and the FDA acknowledges that "electronic nicotine delivery systems" (ENDS) hold great promise as a harm-reducing alternative to cigarettes. But the FDA insists there is no solid evidence that flavor variety makes vaping more appealing to adult smokers, even as it worries that flavor variety makes vaping more appealing to teenagers. So when the FDA reconsiders these applications on remand from the 11th Circuit, it is almost certain to reject them again, notwithstanding the steps that the companies are taking to keep their products away from underage consumers.
