⚖ Oral Arguments, with Context

The Fifth Circuit returns to consolidated challenges by Triton Distribution and Vapetasia after the FDA denied permission to market their flavored e-cigarette liquids. In 2025, the Supreme Court rejected their claim that the FDA unfairly changed its evidentiary requirements, but left another question for the Fifth Circuit: did the agency have to adopt its comparative-efficacy test through public notice and comment? Under that test, a non-tobacco flavor must show greater benefit to adult smokers than a tobacco flavor to offset its added appeal to young users. The manufacturers say this is a binding tobacco product standard, which Congress required the FDA to create by rulemaking. The FDA says it is only applying Congress's public-health test to each application. The panel must decide whether the agency permissibly adjudicated the applications or imposed a rule without the required process.

Wages and White Lion Investments v. FDA (No. 21-60766) — U.S. Court of Appeals for the Fifth Circuit, argued June 9, 2026.