Last January, the U.S. Court of Appeals for the 5th Circuit held that the Food and Drug Administration (FDA) had acted "arbitrarily and capriciously," in violation of the Administrative Procedure Act, when it refused to allow the marketing of flavored nicotine e-liquids made by two companies. On Tuesday, the U.S. Supreme Court agreed to review that decision. The case highlights the maddeningly unfair process by which the FDA enforced its judgment that vaping products in flavors other than tobacco and menthol are ipso facto intolerable, even though former smokers prefer those options.
"Over several years," 5th Circuit Judge Andrew Oldham wrote for the majority in Wages and White Lion Investments v. FDA, the agency "sent manufacturers of flavored e-cigarette products on a wild goose chase." The agency initially said "manufacturers' marketing plans would be 'critical' to the success of their applications." It "promulgated hundreds of pages of guidance documents, hosted public meetings, and posted formal presentations to its website—all with the (false) promise that a flavored-product manufacturer could, at least in theory, satisfy FDA's instructions." Manufacturers "dutifully spent untold millions conforming their behavior and their applications to FDA's say-so."
