Court sides with the FDA in its dispute over sweet-flavored vaping products

Supreme Court News

The Supreme Court on Wednesday ruled for the Food and Drug Administration in its crackdown on sweet-flavored vaping products following a surge in teen electronic cigarette use.

But the justices’ unanimous decision throwing out a federal appeals court ruling is not the final word in the case, and the FDA could change its approach now that President Donald Trump has promised to “save” vaping.

The high court ruled that the FDA, during President Joe Biden’s administration, did not violate federal law when it denied an application from Dallas-based company Triton Distribution to sell e-juices like “Jimmy The Juice Man in Peachy Strawberry” and “Suicide Bunny Mother’s Milk and Cookies.” The products are heated by an e-cigarette to create an inhalable aerosol.

Yolonda Richardson, president and CEO of the Campaign for Tobacco-Free Kids, called the decision “a major victory for the health of America’s kids and efforts to protect them from the flavored e-cigarettes that have fueled a youth nicotine addiction crisis.”

The FDA has rejected applications for more than a million nicotine products formulated to taste like fruit, dessert or candy because their makers couldn’t show that flavored vapes had a net public benefit, as required by law.

It has approved some tobacco-flavored vapes, and recently it allowed its first menthol-flavored e-cigarettes for adult smokers after the company provided data showing the product was more helpful in quitting.

But the conservative 5th U.S. Circuit Court of Appeals sided with Triton, agreeing that the FDA changed its standards with little warning in violation of federal law.

While mainly ruling for the FDA on Wednesday, the Supreme Court noted that the agency had said the company’s marketing plan would be an important factor in evaluating its application. But it ultimately did not consider the marketing plan, Justice Samuel Alito wrote for the court.

Attorney Eric Heyer, who represented the company, expressed disappointment with the ruling but said Triton believes “in the great harm reduction potential” of the products and plans to continue litigation.

The appeals court was ordered to consider if the failure to do so is an important mistake that might still lead to a decision in Triton’s favor.

The FDA has so far not instituted changes to its polices on vaping. But on Tuesday, the FDA’s top tobacco regulator, Brian King, was removed from his post amid sweeping cuts to the federal health workforce that have cleared out many of the nation’s leading health experts. King oversaw hundreds of warning letters issued to companies that make, sell and distribute flavored vapes.

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Workers’ Compensation Subrogation of Administrative Fees and Costs

When a worker covered by workers’ compensation makes a claim against a third party, the workers’ compensation insurance retains the right to subrogate against any recovery from that third party for all benefits paid to or on behalf of a claimant injured at work. When subrogating for more than basic medical and indemnity benefits, the Texas workers’ compensation subrogation statute provides that “the net amount recovered by a claimant in a third‑party action shall be used to reimburse the carrier for benefits, including medical benefits that have been paid for the compensable injury.” TX Labor Code § 417.002.

In fact, all 50 states provide for similar subrogation. However, none of them precisely outlines which payments or costs paid by a compensation carrier constitute “compensation” and can be recovered. The result is industry-wide confusion and an ongoing debate and argument with claimants’ attorneys over what can and can’t be included in a carrier’s lien for recovery purposes.

In addition to medical expenses, death benefits, funeral costs and/or indemnity benefits for lost wages and loss of earning capacity resulting from a compensable injury, workers’ compensation insurance carriers also expend considerable dollars for case management costs, medical bill audit fees, rehabilitation benefits, nurse case worker fees, and other similar fees. They also incur other expenses in conjunction with the handling and adjusting of workers’ compensation claims. Workers’ compensation carriers typically assert, of course, that, they are entitled to reimbursement for such expenditures when it recovers its workers’ compensation lien. Injured workers and their attorneys disagree.