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.
