A Vaping Victory for Big Tobacco Masks the Real Issue
On Friday, the US Supreme Court waded into the confusing, on-again, off-again effort by the Food and Drug Administration to regulate e-cigarettes ... and didn't get too far. In voting 7-2 to allow a suit by RJ Reynolds Vapor Company against the agency to continue, the justices ruled on a tricky procedural issue and, I think, got the answer right. The litigation is far from over, but recent scholarly work suggests that the ban itself might be a mistake.
To understand the case, it's useful to review a bit of history. In 2000, the Supreme Court struck down the FDA's efforts to regulate most tobacco products. Nevertheless, in 2008, the agency began seizing e-cigarettes imported into the US. The following year, Congress passed the Family Smoking Prevention and Tobacco Control Act, which, among other things, required FDA approval before the marketing of any 'new' tobacco product. The courts swiftly held that the authority covered vaping devices. But rather than disrupt what had by then become a substantial market, the agency allowed companies to continue selling their e-cigarette products while it processed their applications.
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