Attorney General Bonta Joins Multistate Coalition in Support of FDA’s Denial of Authorization to Market New Flavored Vape Products

OAKLAND — California Attorney General Rob Bonta joined a multistate coalition of 20 attorneys general in filing an amicus brief in the case of Food and Drug Administration v. Wages and White Lion Investments, LLC., dba Triton Distribution, et al., in support of a decision by the U.S. Food and Drug Administration (FDA) to deny marketing authorization for certain candy- and fruit-flavored vape products on the grounds that those products are not appropriate for the protection of public health. Manufacturers of these flavored e-liquids challenged the FDA’s denial of authorization as arbitrary and capricious, and the Fifth Circuit Court of Appeals ruled in favor of the applicants’ challenge in January 2024. Today’s amicus brief urges the Supreme Court to reverse that decision.

“Addressing the ongoing youth vaping epidemic is a critical public health priority,” said Attorney General Bonta. “In our ongoing efforts to prevent the harms of e-cigarettes and nicotine addiction to our youth, I urge the Supreme Court to reverse the lower court’s ruling. As a father and the People’s Attorney, I remain committed to protecting California’s children’s health, quality of life, and future.”

Tobacco companies make and market e-cigarettes, which come with high nicotine content in a myriad of kid-friendly flavors, that are widely available for purchase on the Internet.  Despite recent progress, youth use of e-cigarettes remains stubbornly high, with 2.13 million high school and middle school students reporting e-cigarette use in 2023. Among those current users, 89.4% use flavored products. E-cigarette use is linked to harmful health consequences, including lung inflammation, impaired lung function, DNA damage, and cardiovascular disease. 

While many states, like California, have taken action to regulate the sale of flavored vape products, the attorneys general argue that the flow of the harmful products across state lines poses a continual risk to youth across all states, necessitating continued FDA oversight to combat the epidemic effectively. Under the Family Smoking Prevention and Tobacco Control Act, the FDA has the authority to enact regulations to curb nicotine and tobacco use, including broad authority to approve or deny new tobacco products from entering the market. The ability of the FDA to deny marketing authorization serves as a crucial tool to help stem the flow of flavored vape products across state lines. 

In the brief, the attorneys general highlight the significant public health harms of flavored vape products, especially for young people, and underscore the need for continued FDA oversight to support state efforts to combat the youth vaping epidemic.          

Attorney General Bonta is joined by the attorneys general of Arizona, California, Colorado, Connecticut, the District of Columbia, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.

A copy of the amicus brief can be found here.