WASHINGTON (AP) — A majority of Supreme Court justices didn't seem convinced Monday that federal regulators misled companies before refusing to allow them to sell sweet-flavored vaping products following a surge in teen e-cigarette use.
The conservative-majority court did raise questions about the Food and Drug Administration crackdown that included denials of more than a million nicotine products formulated to taste like fruit, dessert or candy. Teen vaping use has since dropped to its lowest level in a decade, but the agency could change its approach after the inauguration next month of President-elect Donald Trump, who has promised to “save” vaping.
Vaping companies have long marketed their products as a way to help adults quit traditional cigarettes, and say the FDA changed its standards with little warning as it blocked the sale of over a million new flavored products.
Justice Elena Kagan, though, was skeptical.
“I guess I’m not really seeing what the surprise is here,” she said. “You knew what the FDA’s point of view was ... that blueberry vapes are really problematic in terms of youth smoking."
The FDA was slow to regulate the now multibillion-dollar vaping market, and even years into the crackdown flavored vapes that are technically illegal nevertheless remain widely available.
The agency says the companies were denied because they couldn't show flavored vapes had a net public benefit, as laid out in the law. It has approved some tobacco-flavored vapes, and recently allowed its first menthol-flavored electronic cigarettes for adult smokers after the company provided data showing the product was more helpful in quitting, Deputy Solicitor General Curtis Gannon said.
The issue came before the high court when the agency appealed a decision from the conservative 5th Circuit Court of Appeals tossing out one of its denials.
While other lower courts rebuffed vaping company lawsuits, the 5th Circuit sided with Dallas-based company Triton Distribution. The decision allowed the sale of e-juices like “Jimmy The Juice Man in Peachy Strawberry" and “Suicide Bunny Mother's Milk and Cookies” which are heated by an e-cigarette to create an inhalable aerosol.
Justice Neil Gorsuch questioned whether the FDA process had given the companies a fair chance to make their claims, given that their businesses were at stake.
Conservative Justice Brett Kavanaugh expressed concern about what recourse companies have if agencies issue misleading guidance, though he also elicited that the FDA wasn't required to issue the guidance it gave in the vaping case. “I'm trying to figure out what the legal error is here,” he said.
The vaping companies, he said, can reapply for sales authorization even if they don't win in court. Triton attorney Eric Heyer said that process would take so long that the company could be forced to close.
The court has overall been skeptical of the power of federal regulators, including by striking down the so-called Chevron doctrine that had judges deferring to agencies' interpretation of the law.
Justice Amy Coney Barrett questioned whether the vaping companies wanted the court to take that concept a step further. “It’s almost a reverse Chevron deference, except we're deferring to the applicant," she said.
The court is expected to decide the case in the coming months.
FILE - The Supreme Court is seen in Washington, Nov. 2, 2024. (AP Photo/J. Scott Applewhite, File)
FILE - A high school student uses a vaping device near a school campus in Cambridge, Mass., April 11, 2018. (AP Photo/Steven Senne, File)
WASHINGTON (AP) — President-elect Donald Trump is spending the eve of his inauguration in a series of Washington events celebrating his return to power and his “Make America Great Again” movement, as he prepares to move back into the White House at a time of deep national political divisions.
Throngs of Trump supporters, many arriving from around the country and decked out in their fanciest clothes, including fur coats, filled parties — both formal and informal — at hotels and restaurants close to the White House that stretched into the wee hours of Sunday. As they moved between the festivities, some could be heard chanting “MAGA” or simply stating it as a greeting to fellow revelers.
The nation's capital has prepared in unprecedented ways to keep the unfolding events safe and secure. But unlike when Trump helped spark a mob of his supporters to attack the Capitol and tried to retain power in 2021 after his loss to Democrat Joe Biden, officials are not expecting massive protests, unrest or violence. Instead, the city is braced for crowds celebrating Trump's second term and MAGA's total control of the Republican Party.
It is a remarkable turnaround after Trump left the nation’s capital four years in disgrace and skipped the inauguration of his successor. Trump blasted his way through the 2024 GOP presidential primary and won November's election by an Electoral College margin unseen since Democrat Barack Obama was reelected in 2012.
Yet even with that comfortable victory and his party in full, albeit narrow, control of Congress, the incoming president remains one of the most polarizing figures in U.S. history, with nearly as many fierce detractors as ardent supporters. That means it could be difficult for Trump to fulfill postelection pledges to promote bipartisanship while healing political differences. He has insisted that unity will be a theme of his inauguration speech Monday at the Capitol, along with strength and fairness.
With frigid temperatures expected Monday, Trump directed his oath of office and most of Monday’s outdoor events be moved indoors. Officials held a rehearsal Sunday inside the U.S. Capitol. But because the Rotunda holds only 600 people, it was unclear if the 250,000-plus guests who had tickets to view the inauguration from around the Capitol grounds would have any opportunity to watch.
Large viewing screens that were erected around the National Mall were taken down, but Trump said there would be word on alternative, indoor locations for viewing the ceremonies. The traditional parade was to be held, in some form, at Capital One Arena.
“January 20th cannot come fast enough!," Trump posted on his social media site. “Everybody, even those that initially opposed a Victory by President Donald J. Trump and the Trump Administration, just want it to happen.”
Meanwhile, national and global events drew some of Trump's attention Sunday. He took to his social media site to comment on the ceasefire between Israel and Hamas and the U.S. ban on TikTok.
“Hostages starting to come out today! Three wonderful young women will be first," Trump wrote.
Overnight, millions of U.S. users of TikTok were no longer able to watch videos on the social media platform as a federal ban on the app took effect. That's because of a law requiring its China-based parent company, ByteDance, to divest for national security reasons.
The company made a personal appeal to Trump to intervene, posting a message saying, “We are fortunate that President Trump has indicated that he will work with us on a solution to reinstate TikTok once he takes office."
Trump subsequently posted, “I’m asking companies not to let TikTok stay dark!" He promised to issue an executive order Monday "to extend the period of time before the law’s prohibitions take effect, so that we can make a deal to protect our national security.”
It was not immediately clear how he could do that without violating the U.S. law instituting the ban. The president-elect also wrote that he was interested in the U.S. owning 50% of TikTok in a “joint venture” model, though he did not offer much detail on what that would look like. Incoming national security adviser Michael Waltz insisted that Trump could find a solution by Monday.
“I think we should all be confident that he can craft that kind of a deal,” Waltz told CBS’ ”Face the Nation." He also noted that Trump discussed TikTok on a weekend call with Chinese President Xi Jinping and they "agreed to work together on this.”
“What we need between now and Monday is to buy the president some time to evaluate those deals," Waltz said. “And if it goes dark, that’s going to be, obviously, extremely problematic.”
In keeping to tradition, Trump spent Saturday night at Blair House, the president's official guest residence on Pennsylvania Avenue, across from the White House. He held a private breakfast with Republican senators there on Sunday.
Trump arrived at Blair House after a party at his golf club in Sterling, Virginia, about 30 miles west of the city, that featured a fireworks display that illuminated the night sky.
Trump came back to Washington from his Mar-a-Lago club in Palm Beach, Florida, aboard a C-32, the military variant of the Boeing 757, painted in the iconic presidential powder blue and white color scheme. The aircraft that would be known as Air Force One if the president were aboard carried the president-elect as Special Air Mission 47.
Sunday will be Trump's first full day back in the capital since the election. It gives him a chance to enjoy the moment and fire up his core supporters before Inauguration Day's heavy dose of official pomp, including the swearing-in at noon.
Trump planned to place a wreath at the Tomb of the Unknown Soldier at Arlington National Cemetery before addressing a rally downtown at Capital One Arena, home of Washington pro basketball and hockey teams.
The president-elect was also scheduled to attend a candlelight dinner Sunday where he was expected to speak.
President-elect Donald Trump and Melania Trump, walk off an Air Force Special Mission airplane as they arrive at Dulles International Airport, Saturday, Jan. 18, 2025, in Dulles, Va. (AP Photo/Alex Brandon)
President-elect Donald Trump, Melania Trump and family watch fireworks at Trump National Golf Club, Saturday, Jan. 18, 2025, in Sterling, Va. (AP Photo/Alex Brandon, Pool)
