Fifth Circuit lets big tobacco continue to harm youth

Public health campaigns over the past decades have been successful in reducing the prevalence of cigarette smoking in the U.S., particularly among adolescents. The tobacco industry has thus pivoted to e-cigarettes and vaping. Studies show young people, in particular, mistakenly believe such products are not unhealthy, and have been flocking to such products in droves. As the CDC has explained, e-cigarette usage can be highly addictive, and the chemicals users ingest into their bodies are dangerous.  The CDC’s bottom line? “The use of e-cigarettes is unsafe for kids, teens, and young adults.”

Nonetheless, in an opinion issued yesterday, the Fifth Circuit issued a stay of the FDA’s marketing denial order for RJ Reynolds menthol-flavored Vuse Vibe e-cigarette. Its reasons, among others, were that the agency failed to adequately consider industry-funded studies suggesting “substantial health benefits would accrue to adult and youth cigarette smokers alike who switched to” its menthol e-cigarettes.

Notably, in its discussion of the balance of harms and public interest, the court did not mention the well-documented harms to human health, or grant any deference whatsoever to public health agencies’ assessments.

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