High Court Vaping Case Tests FDA’s Regulatory Powers

A case testing the federal government's ability to regulate potentially harmful tobacco products will kick off arguments at the US Supreme Court in December.

The Biden Administration is fighting to keep off the market new liquids for e-cigarettes sold under flavors like "Blackberry Lemonade" and "Killer Kustard Blueberry" that can attract kids in its appeal of a US Court of Appeals for the Fifth Circuit decision to set aside the Food and Drug Administration's orders denying their approval.

Typically, the court doesn't agree to hear a case "to pat the lower court on the head and say, 'Really good job,'" said Carter Phillips, a partner at Sidley Austin who's argued 90 cases before the justices.

But, he said, "this is a court that is much more skeptical of agency decision-making than the court has ever been, at least in the time that I've been practicing before it."

Phillips joins “Cases and Controversies” hosts Greg Stohr and Lydia Wheeler to talk about the case and why his client, the nonprofit Global Action to End Smoking Inc., is supporting neither side in this dispute,.

Guest: Carter Phillips, Sidley Austin LLP

Hosts: Greg Stohr and Lydia Wheeler

Producer: Mo Barrow

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