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A majority of Supreme Court justices on Monday appeared sympathetic to arguments that the Food and Drug Administration acted appropriately in tightening its standards for certain flavored vaping products deemed appealing to minors.

The FDA’s decision had barred two companies from selling their popular nicotine products, the New York Post reported.

While the court may ultimately identify procedural issues with the FDA’s actions, the three liberal justices, along with Justices Amy Coney Barrett and Brett Kavanaugh, seemed inclined to support the agency’s position.

“I want to figure out what the legal error is there,” Kavanaugh told attorney Eric Heyer, who represented the vape companies Wages and White Lion Investments. “You agree that at the end of the day, the agency has to make a choice, and it’s going to be a choice with uncertainty.”

Heyer contended that the FDA altered its standards midway through the approval process and failed to properly inform the companies of these changes, The Post said.

In 2016, during the Obama administration, the FDA implemented a rule bringing e-cigarettes under the Tobacco Control Act, requiring companies to obtain authorization to market their products. Under the law, applicants must demonstrate that their products are “appropriate for the protection of public health.”

In 2020, Triton Distribution and Vapetasia submitted applications seeking approval for several flavored products, but the FDA rejected them, citing their strong appeal to minors.

Flavors included “Suicide Bunny Mother’s Milk and Cookies” and “Jimmy The Juice Man Peachy Strawberry.” The FDA found that nearly 20% of high school students and 1 in 20 middle school students used e-cigarettes that year. The agency has previously approved other flavored products, the report continued.

The challengers in the case secured a victory at the 5th U.S. Circuit Court of Appeals, a notably conservative court based in New Orleans that, in some instances, has issued rulings deemed too extreme even for the Supreme Court.

“I guess I’m not really seeing what the surprise is here, or what the change is here,” Justice Elena Kagan said at one point, adding that she believed it was clear what the FDA’s concerns were about flavored products appealing to children.

“There’s just not a lot of mystery here about what FDA was doing. You might disagree with that because you think that, in fact, the world of 40-year-olds really wants to do blueberry vaping, but you can’t say that the FDA hasn’t told you all about what it’s thinking in this respect,” she added.

Deputy Solicitor General Curtis Gannon defended the FDA, asserting that the vape companies were clearly “barking up the wrong tree” in their applications.

“They were trying to make exactly the comparison that the FDA at the end of the process said that they have failed to make. They just didn’t have the particular — they didn’t have sufficient scientific evidence on that score,” Gannon argued.

At one point, Kavanaugh focused on the issue of relief, suggesting that the companies could “reapply and hope to succeed,” implying that judicial intervention might not be necessary.

“It’s kind of the end of it, isn’t it?” Kavanaugh asked at another point, after pointing out that the FDA was authorized by Congress when it was created to make such decisions.

Some conservative justices seemed wary of whether the FDA had moved the parameters. Justice Clarence Thomas took note of the companies’ arguments that the FDA guidance was “actually a moving target — that either they weren’t clear or that you changed the guidance as time went on.”

Several appellate courts have previously upheld the FDA’s actions in similar cases.

The Supreme Court heard oral arguments in FDA v. Wages and White Lion just weeks before President-elect Donald Trump is set to take office, with plans to enact significant changes to the agency under his Health and Human Services Secretary-designee, Robert F. Kennedy Jr.

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