392: Vaping Heads to SCOTUS

Tech Policy Podcast

TechFreedom

Technology

4.8 • 45 Ratings

🗓️ 9 December 2024

⏱️ 56 minutes

🔗️ Recording | iTunes | RSS

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Summary

Jonathan Adler (Case Western Law) and Ari Cohn (FIRE) discuss the FDA’s war on vaping and the Supreme Court case FDA v. Wages and White Lion Investments. Topics include: - The (comparative) health case for vaping - Yet another moral panic - Kids take risks! - The bungling FDA - A disappointing oral argument - Fine points of administrative law - Will the Trump admin switch course? Links: En Banc Fifth Circuit Rejects FDA's Vaping Regulation "Surprise Switcheroo" (https://tinyurl.com/ms6rckk5) Baptists, Bootleggers & Electronic Cigarettes (https://tinyurl.com/4ds598w2) Uneducating Americans on Vaping (https://tinyurl.com/ytzpdcy5) The Food & Drug Administration Has a Vaping Problem (https://tinyurl.com/ms3ac5d5) More Evidence that Bans on Flavored Vaping Products May Increase Teen Smoking (https://tinyurl.com/bdhmzmz9) Speech Regulation and Tobacco Harm Reduction (https://tinyurl.com/25pcp83s)

Transcript

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0:00.0	In 2009, Congress enacted the Family Smoking Prevention and Tobacco Control Act,
0:30.0	which gave the Food and Drug Administration the power to regulate the tobacco industry.
0:35.1	Around the same time, vaping was emerging as a safer alternative to smoking.
0:41.8	In 2016, the FDA asserted its authority to regulate vaping products under the Tobacco Control Act.
0:49.3	It effectively banned the vaping industry, but then delayed enforcement of that ban to give vaping
0:55.3	companies a chance to submit applications for market approval.
0:59.5	After some twists and turns, the deadline for such applications wound up being September
1:04.4	2020.
1:06.4	Meanwhile, a reported spike in teen vaping, along with a spate of injuries and deaths caused by black market THC vaping pods,
1:17.0	caused the FDA commissioner to get hauled before Congress.
1:21.2	Then, internal documents suggest, the FDA decided, after the deadline for filing vaping product applications had passed,
1:30.9	to deny all applications for flavored vaping products lacking specific studies on the product's
1:36.3	capacity to wean adults off of cigarettes. To make a long story short, at least for now,
1:57.2	an en banc panel of the U.S. Court of Appeals for the Fifth Circuit wound up concluding that the FDA's behavior, when it indeed mass-denied flavored vaping product applications, was arbitrary and capricious.
2:02.2	The Supreme Court then granted review of that decision, an oral argument occurred last week. The case is FDA versus wages and white lion investments. This is the tech policy
2:11.7	podcast. I'm Corbyn Barthold. I'm delighted to welcome on the show for the first time, Jonathan Adler.
2:20.5	Jonathan is a professor at Case Western Reserve University School of Law. He is also, among many
2:26.8	other cool and interesting things, a contributor to the Volok Conspiracy, where he regularly
2:32.8	covers vaping.
2:35.1	Joining me on the show for the 14th time, yes, I counted, but for the first time not as my colleague, is Ari Cohn.
2:46.7	Ari recently became lead counsel for tech policy at the Foundation for Individual Rights and Expression, better known as fire.
2:56.4	Gentlemen, welcome to you both.
	...

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