Supreme Court Takes Up E-Cigarette and Age Verification Cases

E-cigarettes are displayed at Gone With the Smoke Vapor Lounge on in San Francisco on May 5, 2016. (Justin Sullivan/Getty Images)

The Supreme Court said on July 2 that it would hear cases related to the Food and Drug Administration’s approval of e-cigarette products, as well as porn sites’ challenge to a Texas law requiring age verification by prospective users.

Both cases are coming out of the U.S. Court of Appeals for the Fifth Circuit and raise questions about government attempts to address public health concerns related to minors.

The Free Speech Coalition, a trade association for adult entertainment companies, is asking the Supreme Court to reverse the Fifth Circuit’s decision allowing Texas’s age verification requirement to take effect.

The coalition, along with several companies, argues that the Fifth Circuit erred in holding that the law merely needed a “rational basis” rather than meeting “heightened scrutiny”—both of which refer to standards judges use for reviewing limits on speech.

Texas lost at the district court level, which issued an injunction against both its age verification requirement and one forcing companies to include health warnings on ads for pornography. An injunction on the latter remains in place.

Texas Attorney General Ken Paxton took to social media after the Supreme Court announcement.

“Later this year, I will defend at SCOTUS the important Texas law that requires age verification on porn sites to prevent minors from being exposed to harmful graphic material. ... I look forward to defeating the porn industry’s efforts to keep minors in their audience,” he wrote on X.

In a press release, the Free Speech Coalition said it was “pleased” by the Supreme Court’s decision to hear the case. Executive Director Alison Boden said the process of age verification “is invasive and burdensome, with significant privacy risks for adult consumers.”

Ms. Boden added, “We look forward to defending the rights of all Americans to access the internet privately and free from surveillance.”

E-Cigarettes Case

The Biden administration, meanwhile, is fighting to protect the Food and Drug Administration’s (FDA) decision not to approve manufacturers’ flavored nicotine products, which are known to appeal to youth and young adults.

An en banc panel from the Fifth Circuit said that the agency violated the Administrative Procedures Act by, among other things, not considering the manufacturers’ marketing plans or giving them fair notice before allegedly changing its approach to approval.

In its petition to the Supreme Court, the Biden administration argued that the Fifth Circuit’s decision conflicted with how multiple other circuits had ruled on the FDA’s decision-making.

“The Fifth Circuit’s decision warrants this Court’s review because it conflicts with decisions of other courts of appeals in a number of respects,” the administration’s petition read. “The legal theories accepted by the Fifth Circuit in the decision below have been rejected by every other court of appeals to consider them.”

Following the Fifth Circuit’s decision, one of the manufacturers, Vapetasia, said on its website: “Though the FDA had previously said that it would provide guidance for the PMTA [Premarket Tobacco Product Applications] process, the Agency never made it clear what a successful application required—and, at times, moved the goalposts after we had filed our submissions.”

Those cases—FDA v. Wages and White Lion and Free Speech Coalition, et al v. Paxton—were just two of many cases the Supreme Court acted on in its July 2 orders.

Screens displaying a minor child sign and the logo of the pornographic site Pornhub in Toulouse, France, on May 24, 2022. (Lionel Bonaventure/AFP via Getty Images)

The court also remanded a series of cases in light of its decisions in Loper Bright Enterprises v. Raimondo, which overruled the decades-old Chevron doctrine, and Erlinger v. United States, which emphasized the importance of unanimous juries in fact finding during criminal trials.

It granted certiorari in an immigration case (Monsalvo Velazquez, Hugo v. Garland) questioning the timeline for a noncitizen’s voluntary departure. Two other cases (Hewitt, Tony v. United States and Duffey, Corey, et al. v. United States) were consolidated with a question about sentencing under the First Step Act, which was signed by former President Donald Trump in 2018.