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VTA Files SCOTUS Brief Supporting Avail Vapor’s 4th Circuit Appeal

WASHINGTON, June 18, 2023 – On June 14, 2023, the Vapor Technology Association (VTA) filed an amicus curiae brief with the Supreme Court of the United States in the case Avail Vapor, LLC, et al. v. US Food & Drug Administration. The brief was filed in support of Petitioners’ – Avail Vapor and Blackbriar Regulatory Consulting – Petition for Writ of Certiorari seeking Supreme Court review of the Marketing Denial Orders issued to Petitioners in connection with their open-system flavored vaping products. VTA’s amicus brief encouraged the Supreme Court to take up the case because it will have “major public health and economic impacts that will dramatically affect millions of Americans.”

The Supreme Court Avail

First, VTA explained that only one week after the Fourth Circuit’s decision upholding the MDOs, an Independent Tobacco Expert Panel released its report on FDA’s Center for Tobacco Products which revealed serious regulatory failings of the agency, including those specifically raised by Petitioners in the Supreme Court Petition. The report which roundly crticized the FDA’s handling of pre-market tobacco applications, like those at issue in the Petition, had been called for by FDA Commissioner Robert Califf himself.

Second, VTA explained that the world’s leading tobacco and nicotine researchers have undermined the scientific underpinnings of the FDA’s decision-making rationale, and called into question the public health objectives of removing flavored ENDS products from the market, making review by the Court important not to simply re-examine the science (which courts generally will not do), but to evaluate the propriety of the highly questionable process used by FDA to implement the requirements of the Tobacco Control Act.

Third, VTA explained that the independent vapor industry comprises more than 10,000 companies across the United States and is responsible for generating more than 130,000 jobs and more than $22 billion in economic activity for the U.S. economy – an industry that would be devastated by FDA’s continued march to ban flavored ENDS. VTA also explained the results of its expert economists’ analysis that FDA’s removal of all flavored vaping products from the market would lead to the shutdown of close to 10,000 businesses, causing the loss of 99,158 full-time equivalent jobs, the loss of $5,258,906,715 in wages and benefits, and the loss of $16,449,776,269 to the U.S. economy, all of which makes the issue before the Court important for consideration.

The goal of the brief is to encourage the Supreme Court to take up the case petitioning for review. Our hope is that our amicus brief offers the Supreme Court additional context and rationale for why reviewing FDA’s actions is exceptionally important. Read the brief or download here:

The Vapor Technology Association is the U.S. industry trade association whose members are dedicated to sound science-based regulation and selling innovative high-quality vapor products that provide adult smokers with a better alternative to combustible cigarettes. VTA represents the industry-leading manufacturers of vapor devices, e-liquids, and flavorings, as well as the distributors and retailers, including hardworking American mom-and-pop brick-and-mortar retail store owners.

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