VTA Statement: Response to SCOTUS Decision to Overturn Chevron

Published on June 28, 2024

WASHINGTON – June 28, 2024 – The following statement is attributable to Tony Abboud, executive
director of the Vapor Technology Association (VTA):

“VTA welcomes the decision by the Supreme Court of the United States to overturn Chevron vs. The Natural Resources Defense Council. The decision clearly bolsters what VTA has been saying for years: the U.S. Food and Drug Administration (FDA) and, specifically, the Center for Tobacco Products (CTP), overstepped its authority when it chose to implement a de-facto ban on flavored e-cigarettes in its deeply flawed implementation of the PMTA process.”

“To be clear, it is FDA’s responsibility under the law to create a regulation that clearly addresses the statutory standard of what is ‘appropriate for the protection of public health’ since the Tobacco Control Act is ambiguous on how that determination should be made. However, there is no question that the FDA violated the Administrative Procedure Act by implementing what the Fifth Circuit Court of Appeals called ‘a de-facto ban on flavored e-cigarettes’ through its shifty implementation of the PMTA regulation by imposing new requirements on products after applications were already filed, ultimately ensuring their application’s demise.”

“The Supreme Court’s decision elevates the importance of the Reagan-Udall Foundation’s findings, after being convened at the request of the FDA Commissioner, which specifically and clearly criticized the FDA’s Center for Tobacco Products for failing to inform companies what must be provided under the regulation to demonstrate APPH and, as importantly, for failing to inform the public on how FDA is applying this standard.”

“Today’s Supreme Court ruling puts the FDA’s mis-regulation of flavored e-cigarettes in serious jeopardy and raises real legal challenges for the FDA’s serial and en masse rejection of e-cigarettes, which FDA continues to reject without proper review of the science.”

“In light of the fact that today’s decision will call into question prior legal determinations and possibly lead to further protracted litigation that will take years to resolve, VTA is once again calling for the FDA to immediately suspend any further denials based on its existing process and instead create a clear and streamlined tobacco product standard that will allow independent companies of all sizes to get less harmful nicotine alternatives on the market as it is required to do under the law.”

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