Under the Family Smoking Prevention and Tobacco Control Act, the Food and Drug Administration (FDA) has the authority to regulate tobacco products, including e-cigarettes. 

To market new tobacco products, manufacturers must submit a Premarket Tobacco Product Application (PMTA) and demonstrate that their product is “appropriate for the protection of the public health.” This includes showing that the product is more likely to help current smokers quit than to attract new users, particularly young people.

Triton Distribution and Vapetasia applied to market their flavored e-cigarette products (like “Mother’s Milk and Cookies” and “Strawberry Astronaut”), but the FDA denied their applications because the company failed to provide sufficient scientific evidence showing that the products would not attract youth more than help existing smokers quit. The FDA based its decision on concerns that flavored e-cigarettes are particularly appealing to minors, contributing to youth tobacco use and addiction.

However, the Court of Appeals for the Fifth Circuit set aside the FDA’s denial of the companies’ applications.

The case moved on to the United States Supreme Court, where we now represent sixteen members of Congress, led by Sen. Richard J. Durbin, filing an amicus brief arguing that the Fifth Circuit’s ruling undermines public health protections and threatens the FDA’s ability to regulate the e-cigarette market and that allowing products appealing to youth back onto the market could reverse progress in reducing youth tobacco use and addiction.

The members of Congress supporting the FDA’s position through our amicus brief are Sen. Richard J. Durbin, Rep. Frank Pallone, Jr., Sen. Jeffrey A. Merkley, Sen. Ron Wyden, Sen. Richard Blumenthal, Sen. Tammy Baldwin, Sen. Jack Reed, Sen. Elizabeth Warren, Sen. Jeanne Shaheen, Sen. Edward J. Markey, Rep. Raja Krishnamoorthi, Rep. Diana DeGette, Rep. Rosa L. DeLauro, Rep. Kim Schrier, M.D., Rep. Debbie Wasserman Schultz, and Rep. Barbara Lee.