The Supreme Court on Monday heard arguments in a battle between the Federal Drug Administration and two vape manufacturers regarding whether the FDA unlawfully refused to approve flavored e-cigarettes over public health concerns.
The case focuses on challenges brought by Triton Distribution and Vapestasia, which create flavors like milk and cookies, pineapple express and custard blueberry.
The FDA repeatedly declined to approve flavored vape products.
"The FDA absolutely has the right to regulate them, and they should. My argument is they should do more, but nobody should question their ability to regulate," said U.S. Rep. Raja Krishnamoorthi. "It’s the profit, motive, that’s really driving these e-cigarette companies from going after our kids... Our kids are not for sale.”
Doctors at Lurie Children's Hospital in Chicago recently weighed in on the "youth vape epidemic" and addictive nature of vapes.
“Their brains are really susceptible to the negative impacts of nicotine," said Dr. Mariah Rahmander, the medical director of Substance Use and Prevention at Lurie's. "The aerosol creates really super tiny particles that can go deeper into the lungs than traditional cigarette smoke."
She said doctors see young patients with asthma, coughs and addiction, although the long-term effects of e-cigarettes are still unknown.
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"I recently met with a teenager after a fentanyl overdose, and when he was able to come off the ventilator, he was not craving or having withdrawal symptoms from opioids. It was the nicotine cravings and withdrawal symptoms that were most distressing to him," she said.
Only 34 vapes are approved by the FDA, according to Krishnamoorthi. However, the U.S. market is flooded with illegal and unapproved products.
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"More than 90 percent are coming from the People’s Republic of China right now, and the CCP is looking the other way," he said. "The Chinese Communist Party knows this is happening, they’re looking the other way.”
Krishnamoorthi is a ranking member of the Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party.
"In any case, once they arrive here and are on store shelves, we should have ability to clear them off, and we should clear them off," he said.
However, law enforcement agencies are having a hard time doing so, citing a lack of direction from the FDA.
"Whether it’s heroin, cocaine, guns, there’s real clarity about what’s legal and illegal, that’s always been the case forever," said Cook County Sheriff Tom Dart.
He said that's not the case with e-cigarettes, and it's often unclear and hard to tell what products are legal or illegal.
"We have reached out to the FDA, I don’t know how many times, saying, ‘hey can you give us some direction,'" Dart said. “When we go into these stores knowing full well these are very addictive things, particularly for kids, and wanting to take and confiscate the ones that are the worst, we have no idea what we’re going for.”
The FDA started regulating e-cigarettes in 2020 by limiting flavors it believed target teens.
Since then, fewer teens have reported using vapes. However, there are still 1.63 million middle school and high school students who report vaping.
Krishnamoorthi said he hopes the incoming Trump administration will continue to crack down on the vape industry and remove loopholes.
"They need to pick up where they left of," he said. "He put in a ban on flavors... we need to make it stricter and enforce that ban."
It's unclear what the administration will do when it comes to e-cigarettes. Trump has gone back-and-forth on the issue multiple times since 2019.
