Supreme Court to review FDA’s power to regulate e-cigarettes and hear First Amendment case on age limits for porn sites

The Supreme Court agreed Tuesday to review the US Food and Drug Administration’s strict regulations for e-cigarettes, a multibillion-dollar industry that has come under scrutiny for its popularity among young people.

The court’s decision means the justices will once again be tasked with assessing the federal agency’s decisions and scientific expertise after they heard a case this term concerning the FDA’s regulation of a key abortion drug.

The high court also said it would hear a hear a lawsuit over Texas’ age-verification requirements for sexually explicit web sites, granting an appeal from the adult entertainment industry challenging the prohibition on First Amendment grounds.

Texas’ law requires any website that publishes a substantial amount of content that is “harmful to minors” to verify the age of users. The challengers said the law also forces adults to identify themselves before accessing pornography, which the group’s lawyers said violates access to free speech online.

The decisions to take or deny cases came a day after the Supreme Court handed down the final opinions of a contentious term, including the decision to grant sweeping immunity to former President Donald Trump. After the final opinions, the court issues what’s known as a “clean up” conference list that provides insight into the next term that will begin in October. Many of the cases granted on Tuesday will likely be heard later this year or in early 2025.

Spike in e-cigarette use amid health concerns

Public health advocates have been sounding the alarm in recent years on a spike in vaping among young Americans. A study released last year found that an estimated 2.1 million children have used e-cigarettes regularly, and the majority use flavored products.

Under the FDA’s Premarket Tobacco Product Application pathway, companies must demonstrate that the marketing of a product would be appropriate for the protection of public health. When the FDA makes a decision about an e-cigarette product, it has to take into consideration the risk and benefit to the entire population, not just users of these products.

The agency has denied applications for scores of products – namely ones that are flavored to taste like candy and desserts – prompting legal challenges from numerous e-cigarette makers.

Lower courts are divided on whether the agency acted “arbitrary and capricious” in denying the applications, with several having sided against the e-cigarette makers.

But the conservative 5th US Circuit Court of Appeals ruled against the FDA earlier this year, saying the agency had sent manufactures on a “wild goose chase” in recent years to get approval for their products and that it acted “unlawfully” in denying applications from two e-cigarette makers. Those companies were attempting to get approval to market products with names like “Suicide Bunny Mother’s Milk and Cookies” and “Iced Pineapple Express.”

The Biden administration told the justices that the 5th Circuit’s ruling “has far-reaching consequences for public health and threatens to undermine the Tobacco Control Act’s central objective of ‘ensuring that another generation of Americans does not become addicted to nicotine and tobacco products.’”

“FDA has never adopted a categorical ban on flavored e-cigarette products. Rather, it has recognized that, because such products pose a ‘known and substantial risk to youth,’ applicants bear a particularly high burden of proving ‘a potential for benefit to adult smokers that could justify the risk,’” Solicitor General Elizabeth Prelogar told the justices in court papers.

Porn restrictions face First Amendment challenge

The challenge to the Texas law also comes from the 5th Circuit.

A 2-1 panel in March allowed the law to go into effect, citing Texas’ “legitimate interest in preventing minors’ access to pornography.”

A trade group representing the adult entertainment industry appealed to the Supreme Court in April. The group also requested that the justices temporarily block the law while the appeal continued – a request that was denied in April. There were no noted dissents.

“While purportedly seeking to limit minors’ access to online sexual content, the act imposes significant burdens on adults’ access to constitutionally protected expression,” the industry, represented by the American Civil Liberties Union, said in its appeal.

The Supreme Court in 1997 unanimously invalidated provisions of a federal law intended to protect minors from indecent material online because it also imposed First Amendment burdens on adults. But in reviewing the Texas law, the 5th Circuit relied instead on a 1968 precedent in which the Supreme Court let stand a New York law barring the distribution of obscene material to minors.

“The record is replete with examples of the sort of damage that access to pornography does to children,” the appeals court wrote. “Because it is never obvious whether an internet user is an adult or a child, any attempt to identify the user will implicate adults in some way.”

CNN’s Jen Christensen contributed to this report.

This story has been updated with additional details.

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