WEBVTT - The Fight Over Flavored E-Cigarettes 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:10.240 --> 0:00:15.480 About one point six million school children currently use e cigarettes. 0:00:15.840 --> 0:00:19.720 Flavored vapes with colorful names that evoke candy and sweets 0:00:20.040 --> 0:00:23.840 are particularly appealing to young people, which has prompted the 0:00:23.880 --> 0:00:27.560 Food and Drug Administration to curb access to the products. 0:00:28.080 --> 0:00:32.240 The FDA turned down two companies' applications to market e 0:00:32.440 --> 0:00:37.479 cigarettes with names like Jimmy the Juiceman, Peachy Strawberry, and 0:00:37.640 --> 0:00:43.040 Suicide Bunny, Mother's Milk and Cookies. The agency's attorney, Curtis Gannin, 0:00:43.240 --> 0:00:45.640 defended its position at the Supreme Court. 0:00:46.400 --> 0:00:50.479 Research has long shown that flavors increased youth appeal of 0:00:50.600 --> 0:00:54.720 tobacco products, and evidence accumulates further confirming that youth are 0:00:54.760 --> 0:00:59.400 particularly attracted to flavored ends products. The concern would be 0:00:59.480 --> 0:01:02.600 that their getting addicted to tobacco at a time when 0:01:02.760 --> 0:01:06.280 when tobacco to a nicotine, at a time when nicotine 0:01:06.319 --> 0:01:10.520 is dangerous to their developing brains, and may be, you know, 0:01:10.720 --> 0:01:15.360 sensing them to a long life of needing to satisfy 0:01:15.400 --> 0:01:15.960 that addiction. 0:01:16.760 --> 0:01:20.880 The vaping companies say the FDA changed its standards with 0:01:21.000 --> 0:01:23.800 little warning as it blocked the sale of more than 0:01:23.840 --> 0:01:27.920 a million new flavored products. But just as Elena Kagan 0:01:28.000 --> 0:01:31.679 said that the FDA's position has been clear, do. 0:01:31.600 --> 0:01:34.760 You know that FDA thinks that flavors? I mean, FDA 0:01:35.200 --> 0:01:38.480 has been completely upfront about this, and I think that 0:01:38.560 --> 0:01:43.360 the point you know that flavors you give people blueberry vapes. 0:01:44.920 --> 0:01:48.640 The difficulty with that, and FDA I think has tried 0:01:48.680 --> 0:01:52.120 to document this is that blueberry vapes are very appealing 0:01:52.200 --> 0:01:54.680 to sixteen year olds, not to forty year olds. 0:01:55.160 --> 0:01:59.320 Aside from legalities, the practical question is what's the remedy 0:01:59.480 --> 0:02:02.440 even if the court rules for the vaping companies, because, 0:02:02.480 --> 0:02:06.040 as just as Brett Kavanaugh pointed out to the company's attorney, 0:02:06.400 --> 0:02:10.280 Eric Higher, the companies can always reapply to the FDA 0:02:10.600 --> 0:02:11.760 for sales authorization. 0:02:12.280 --> 0:02:14.520 And while they won this case, they can reapply. 0:02:16.440 --> 0:02:18.480 Yes, if they won this case or if they lose 0:02:18.520 --> 0:02:20.280 this case, they will be able to reapply. 0:02:20.440 --> 0:02:25.560 That's my question about what the relief really accomplishes here 0:02:25.680 --> 0:02:28.520 that is being sought as a practical matter. I understand 0:02:28.520 --> 0:02:32.639 the legal point the FDA acted arbitraining capriciously, but either way, 0:02:32.680 --> 0:02:36.640 it's going to be that they can reapply and hope 0:02:36.639 --> 0:02:37.200 to succeed. 0:02:38.120 --> 0:02:41.359 This case is an appeal from the conservative Fifth Circuit's 0:02:41.440 --> 0:02:46.080 decision finding that the agency unfairly shifted its standards for 0:02:46.160 --> 0:02:50.320 approving the vaping products while deciding on applications from the 0:02:50.360 --> 0:02:53.720 two companies. Joining me is Sean Collins, a partner at 0:02:53.760 --> 0:02:58.040 Straddling Yoguck, Carlson and Rauth give us some background on 0:02:58.120 --> 0:03:00.880 the FDA and these flavors eat cigarettes. 0:03:01.880 --> 0:03:05.120 Let's start with what the FDA's mandate is. The FDA's 0:03:05.160 --> 0:03:07.320 mandate is to look out for the health and well 0:03:07.400 --> 0:03:10.400 being of the general American public, meaning they are supposed 0:03:10.400 --> 0:03:13.840 to certify all foods and drugs and certify that they 0:03:13.840 --> 0:03:17.040 are healthy and beneficial for the well being of the 0:03:17.080 --> 0:03:20.680 citizens of the United States of America. And so what 0:03:20.800 --> 0:03:23.560 we have going on between the FDA and the e 0:03:23.720 --> 0:03:26.120 cigarette companies right now, I call it a bit of 0:03:26.160 --> 0:03:29.880 the game of whack a mole. And so it's like anything. 0:03:30.000 --> 0:03:32.679 You know, if you regulate one product and you're successful 0:03:32.680 --> 0:03:35.640 in getting a certain product regulated, another product is going 0:03:35.680 --> 0:03:38.760 to pop up. And so you know, the FDA spent 0:03:39.560 --> 0:03:43.080 fifty years or more trying to get people to stop 0:03:43.160 --> 0:03:47.480 smoking cigarettes, right, and they were pretty successful at doing that. 0:03:47.680 --> 0:03:49.640 When you look at the statistics of how many people 0:03:49.760 --> 0:03:52.640 actually smoke cigarettes. You know, I remember growing up in 0:03:52.680 --> 0:03:56.200 the eighties and everybody smoked. You know, people smoked indoors, 0:03:56.240 --> 0:04:00.400 people smoked in offices, and everybody smoked. Nowadays, you know, 0:04:00.440 --> 0:04:03.360 I live in California, so it's probably more skew than 0:04:03.480 --> 0:04:06.400 anywhere else. But you can't smoke anywhere. I don't see 0:04:06.400 --> 0:04:09.240 anybody smoking. And you know, you look at the statistics, 0:04:09.240 --> 0:04:12.080 I think they say two percent of America smoke cigarettes now, 0:04:12.480 --> 0:04:16.400 which is negligible. That's pretty much nobody smokes cigarettes. So 0:04:16.600 --> 0:04:20.040 obviously the people that still do smoke cigarettes. You know, 0:04:20.240 --> 0:04:22.719 business and enterprise are always wanting to come up with 0:04:22.760 --> 0:04:25.440 an alternative, so they came up with the e cigarette. 0:04:26.000 --> 0:04:29.280 And so the e cigarette was designed as a mechanism 0:04:29.360 --> 0:04:33.279 to help wean adults who are otherwise addicted to cigarettes, 0:04:33.320 --> 0:04:36.119 that try to help them stop smoking cigarettes and smoke 0:04:36.160 --> 0:04:39.320 something that would be a better alternative for them. Now, 0:04:39.600 --> 0:04:42.880 like any business, e cigarette companies, they want to advertise 0:04:42.920 --> 0:04:45.039 and market their products and make it look cool. So 0:04:45.120 --> 0:04:47.839 think the Marlboro Man. You know, I used to always 0:04:47.839 --> 0:04:50.039 think when I would drive a billboard, look at their 0:04:50.040 --> 0:04:52.760 cowboy It looks really cool with the cigarette and mouth, 0:04:53.240 --> 0:04:55.320 and that attracts a lot of people that want to 0:04:55.320 --> 0:04:58.960 smoke cigarettes. So e cigarette companies obviously came up with 0:04:59.080 --> 0:05:03.120 creative ways to advertising market their e cigarette fronduct. Now 0:05:03.200 --> 0:05:06.000 that's all well and good, and the FDA probably wouldn't 0:05:06.000 --> 0:05:10.440 have cared if their marketing was being successful with adults. 0:05:10.880 --> 0:05:14.279 The problem is is e cigarettes became cool amongst younger 0:05:14.279 --> 0:05:18.080 demographics and particular teenagers, and so what you saw is 0:05:18.120 --> 0:05:22.000 a spike in teams using e cigarette. So it was 0:05:22.040 --> 0:05:24.200 one of those situations. The reason why I said whack 0:05:24.240 --> 0:05:26.400 the mo mole was because you whacked one problem and 0:05:26.480 --> 0:05:30.160 were able to successfully pretty much negate that problem, and 0:05:30.200 --> 0:05:32.600 then another problem popped up over on the right, which 0:05:32.600 --> 0:05:36.880 as teenagers are now really into e cigarette and explain. 0:05:36.600 --> 0:05:39.320 The issue in the case the Supreme Court heard this week. 0:05:39.640 --> 0:05:43.200 So the issue that you currently have before the Supreme Court, 0:05:43.800 --> 0:05:47.000 it's more of what is the authority of the FDA. 0:05:47.160 --> 0:05:50.200 That's the actual legal question the Supreme Court is looking at. 0:05:50.600 --> 0:05:53.920 But I will say that one of the balancing tests 0:05:53.960 --> 0:05:57.880 that the Supreme Court is having to deal with is well, okay, 0:05:57.920 --> 0:06:01.640 I understand that the FDA is trying to regulate, you know, 0:06:02.040 --> 0:06:05.800 the advertising and marketing of cigarettes. Two teams. But the 0:06:05.920 --> 0:06:08.680 question becomes, one, do they have the authority to do that? 0:06:09.200 --> 0:06:11.640 And whether or not they have the authority to do 0:06:11.760 --> 0:06:14.800 that is more of a great question, because I think 0:06:14.839 --> 0:06:17.840 the Supreme Court is looking at it as well. What 0:06:17.880 --> 0:06:20.239 they're doing is coming from a good place. They're trying 0:06:20.279 --> 0:06:22.880 to protect the help of the future generation. And so 0:06:22.920 --> 0:06:25.560 I think that's the particular that the Supreme Court is 0:06:25.560 --> 0:06:28.040 grappling with right now, which is why when you listen 0:06:28.040 --> 0:06:31.080 to the oral argument, the oral argument, even you know, 0:06:31.120 --> 0:06:34.520 everybody said, oh, it's the conservative court. They're probably going 0:06:34.560 --> 0:06:37.839 to side with big business. They're going to side with 0:06:38.080 --> 0:06:41.520 the e cigarette companies. And what you heard oral argument 0:06:41.720 --> 0:06:45.200 is it sounded like the Supreme Court was kind of 0:06:45.279 --> 0:06:48.279 deferring to the regulatory authority of the SPA. 0:06:49.440 --> 0:06:53.680 Yeah, that was surprising. Just as Kagan said, I guess 0:06:53.720 --> 0:06:56.479 I'm not really seeing what the surprise is here or 0:06:56.520 --> 0:07:00.760 what the change is here, because basically everyone knew the 0:07:00.880 --> 0:07:06.000 FDA's position on e cigarettes. So the question that Ret. 0:07:06.080 --> 0:07:09.640 Kavanaugh brought up as well, what's the relief here? Even 0:07:09.680 --> 0:07:11.360 if you win the cigarette. 0:07:10.880 --> 0:07:15.160 Companies exactly, And that's the big question, and that's usually 0:07:15.160 --> 0:07:18.000 the biggest problem. You know, It's funny everybody spends all 0:07:18.040 --> 0:07:20.920 their time in law school thinking about the big legal 0:07:21.000 --> 0:07:23.440 arguments of why I'm right on a particular issue, but 0:07:23.480 --> 0:07:26.200 nobody ever thinks, okay, well what if I win? What's 0:07:26.200 --> 0:07:29.680 the remedy? Which is why when I talked to the young 0:07:29.760 --> 0:07:32.160 law students, I always tell them, probably the most important 0:07:32.200 --> 0:07:34.760 class you will take while you're in law school is remedy. 0:07:35.000 --> 0:07:37.600 And they look at me confused, like nities, like what 0:07:37.600 --> 0:07:40.640 are you talking about? That's like what happens after the 0:07:40.680 --> 0:07:43.120 case is over? And it's like, yeah, I know, but 0:07:43.240 --> 0:07:45.800 think about it. You can spend ten million dollars arguing 0:07:45.880 --> 0:07:47.760 that you're right, and then the court days you're right, 0:07:47.840 --> 0:07:49.480 and then they ask you, well, what do you want? 0:07:49.840 --> 0:07:52.680 And so that's the issue here is you know, for 0:07:52.720 --> 0:07:55.520 the e cigarette companies, it's like, okay, well, even if 0:07:55.560 --> 0:07:59.920 you are correct in saying that the laws that the 0:08:00.320 --> 0:08:04.200 isn't imposing here are arbitrary and capricious, which is the 0:08:04.280 --> 0:08:06.920 core legal argument that the e cigarette companies are making, 0:08:06.960 --> 0:08:09.520 which is a good legal argument. They're basically saying you're 0:08:09.520 --> 0:08:12.680 making up rules and regulations that are effectively a moving target. 0:08:13.080 --> 0:08:16.240 So me as a company, I can't even craft policy 0:08:16.640 --> 0:08:19.720 to address your concerns because every month you're moving the 0:08:19.720 --> 0:08:22.480 goalpost on me. And so the Supreme Court has it 0:08:22.600 --> 0:08:26.000 technically said, Okay, let's say that we do tell the 0:08:26.160 --> 0:08:29.080 FDA that they need to be more definitive with their 0:08:29.160 --> 0:08:31.960 rule making and say these are the laws and regulations 0:08:31.960 --> 0:08:35.000 that governing the advertising and marketing and the regulation and 0:08:35.080 --> 0:08:37.199 e cigarettes. How does that help you? 0:08:38.320 --> 0:08:42.480 Are the e cigarette companies just looking for more time 0:08:42.960 --> 0:08:45.920 to start the process over again or do they not 0:08:46.000 --> 0:08:47.480 want to start the process over again? 0:08:47.920 --> 0:08:51.120 I think timing is definitely of concern because, if you 0:08:51.240 --> 0:08:54.200 think about it right now, one of the biggest things 0:08:54.200 --> 0:08:56.160 and nobody really talks about it when it comes to 0:08:56.240 --> 0:09:00.240 businesses and advertising and marketing. But they currently have has 0:09:00.280 --> 0:09:03.440 the attention of a generation, so they have captivated a 0:09:03.480 --> 0:09:07.079 particular generation. So when you look at cigarette companies, cigarette 0:09:07.120 --> 0:09:11.360 companies effectively capture the imagination of the baby boomers, and 0:09:11.400 --> 0:09:14.240 that's a very large demographic. So if you're selling a 0:09:14.240 --> 0:09:17.760 product and you have a captive audience and a whole 0:09:17.840 --> 0:09:20.959 generation of you know, so for e cigarette companies. I 0:09:21.000 --> 0:09:23.280 guess you would call it gen Z. The other day 0:09:23.320 --> 0:09:24.800 I heard that the granted the gen A. 0:09:25.240 --> 0:09:29.960 Now I've lost track of the gen So gen Z. 0:09:30.200 --> 0:09:34.640 I believe is effectively sixteen year old to young professionals. 0:09:34.640 --> 0:09:38.360 So let's go sixteen to thirty right now. That is 0:09:38.360 --> 0:09:42.600 the demographic that is very captivated by e cigarette And 0:09:42.720 --> 0:09:45.640 I think the sense of urgency from the e cigarette 0:09:45.679 --> 0:09:49.880 generation right now is that they are now being prohibited 0:09:50.559 --> 0:09:54.520 from advertising and marketing to gen Z, which could be 0:09:54.520 --> 0:09:59.120 a very lucrative demographic because the thing about especially products 0:09:59.160 --> 0:10:03.319 like this, if you develop brand loyalty right now, this 0:10:03.400 --> 0:10:05.760 is the type of product that they will use throughout 0:10:05.760 --> 0:10:08.040 their lives. It's not like a toy or a video 0:10:08.120 --> 0:10:10.120 game where a person may grow out of it or 0:10:10.120 --> 0:10:11.959 phase out of it. You know, if you're an e 0:10:12.160 --> 0:10:14.559 cigarette person, you may be using the e cigarettes for 0:10:14.600 --> 0:10:16.440 the next thirty forty fifty years. 0:10:17.040 --> 0:10:22.640 Do vaping companies have problems getting regular e cigarettes approved 0:10:23.200 --> 0:10:26.720 or is it just about the flavored e cigarettes. 0:10:26.920 --> 0:10:30.560 For this particular case, And that's a very important question. 0:10:30.600 --> 0:10:32.920 For this particular case, you're talking about the flavored e 0:10:33.000 --> 0:10:37.000 cigarette because that's what the FDA is saying. They're saying, 0:10:37.040 --> 0:10:41.640 the E cigarette companies with the flavored cigarette, you're no 0:10:41.720 --> 0:10:45.000 longer targeting the forty year old who is trying to 0:10:45.000 --> 0:10:48.280 win themselves off a cigarette. You were targeting the thirteen, 0:10:48.440 --> 0:10:51.360 fourteen to fifteen year old to try to entice them 0:10:51.720 --> 0:10:54.520 and to hook them on e cigarette so that you 0:10:54.640 --> 0:10:56.880 have them for a generation, so that you have them 0:10:56.920 --> 0:10:58.600 for the next forty to fifty years. 0:10:58.840 --> 0:10:58.960 Now. 0:10:59.040 --> 0:11:02.160 E cigarette company will probably deny that, but that's absolutely 0:11:02.200 --> 0:11:04.600 what they're trying to do, and I'm not saying that 0:11:04.640 --> 0:11:08.400 there's anything wrong with it. That's smart marketing and business strategy. 0:11:08.679 --> 0:11:12.559 The focus of this particular case that before Supreme Court 0:11:12.960 --> 0:11:15.400 is the flavored e cigarettes, and the reason why it's 0:11:15.400 --> 0:11:19.640 the focus of the court is because the FDA is arguing, 0:11:20.160 --> 0:11:23.680 you are advertising and marketing these flavored cigarettes in a 0:11:23.760 --> 0:11:27.359 manner whereby you are trying to make them incredibly attractive 0:11:27.920 --> 0:11:32.640 to gen Z thirteen, fourteen, fifteen, sixteen, seventeen, eighteen year old, 0:11:32.800 --> 0:11:36.800 and by doing that, you are compromising their health now 0:11:37.120 --> 0:11:41.120 and for a future generation. E cigarette companies are arguing, well, 0:11:41.320 --> 0:11:45.439 you can't create an arbitrary and capricious rule that says 0:11:46.160 --> 0:11:49.079 you as an e cigarette company can advertise and market 0:11:49.120 --> 0:11:51.960 your e cigarettes, you just can't do it in this manner. 0:11:52.040 --> 0:11:53.640 You can't have flavors. 0:11:53.840 --> 0:11:56.160 Coming up next on the Bloomberg Law Show, I'll continue 0:11:56.160 --> 0:11:59.719 this conversation with Sean Collins. How the President elect's name 0:11:59.800 --> 0:12:03.880 came up in the oral arguments over flavored east cigarettes. 0:12:04.280 --> 0:12:08.880 This is Bloomberg. Supreme Court justices seemed skeptical that they 0:12:08.880 --> 0:12:12.560 could give any relief to companies whose applications to sell 0:12:12.679 --> 0:12:16.640 flavored e cigarettes were denied by the Food and Drug Administration. 0:12:17.400 --> 0:12:20.400 Several of the justices pointed out that even if the 0:12:20.440 --> 0:12:25.559 companies reapplied, the FDA would continue to deny the applications. 0:12:26.360 --> 0:12:31.480 Perhaps the vaping company's best hope is the incoming Trump administration. 0:12:32.000 --> 0:12:35.679 Here's the attorney for the vaping companies, Eric Higher. 0:12:36.200 --> 0:12:38.960 And Frankly, we don't know what FD is, HOWFT is 0:12:38.960 --> 0:12:40.720 going to approach it on remand we have a new 0:12:40.760 --> 0:12:44.120 administration coming in. The President elect is on record saying 0:12:44.160 --> 0:12:47.240 I'm going to say flavored vapes. We don't know exactly 0:12:47.240 --> 0:12:48.760 what that's going to look like. It maybe that the 0:12:48.800 --> 0:12:51.360 approach the agency takes is much more aligned with the 0:12:51.400 --> 0:12:54.000 statute and looks at all the risks and benefits. 0:12:54.400 --> 0:12:57.320 I've been talking to Sean Collins, a partner at Straddling. 0:12:57.679 --> 0:13:01.720 So this is an appeal from the ultra conservative Fifth Circuit. 0:13:02.080 --> 0:13:08.200 There is a circuit split. The second, third, fourth, fifth, sixth, seventh, ninth, tenth, 0:13:08.360 --> 0:13:12.520 and DC circuits have sided with the FDA and denied 0:13:12.559 --> 0:13:18.280 the petitions or requests to stay the agency's marketing denial 0:13:18.440 --> 0:13:21.920 orders for flavored e cigarettes. So the Supreme Court almost 0:13:21.960 --> 0:13:24.439 had to take this case to straighten it out, even 0:13:24.480 --> 0:13:26.880 though more than one of the justices said there was 0:13:27.000 --> 0:13:29.200 no real relief to be had here. 0:13:29.840 --> 0:13:33.240 That sounds like what's happening here. I was surprised that 0:13:33.360 --> 0:13:35.880 the Fifth Circuit was the lone wolf here for lack 0:13:35.920 --> 0:13:38.240 of a better word. You know, it's not the type 0:13:38.240 --> 0:13:40.080 of ruling that I would have expected out of the 0:13:40.080 --> 0:13:42.800 Fifth Circuit. But yeah, now, I mean, that's that's what 0:13:42.840 --> 0:13:45.239 the Supreme Court is up against right now, the effectively 0:13:45.280 --> 0:13:46.560 overruling the Fifth Circuit. 0:13:46.800 --> 0:13:50.640 Is it surprising that the justices seemed to be crediting 0:13:51.200 --> 0:13:55.320 the FDA's expertise here. I mean, this is a court 0:13:55.400 --> 0:13:59.359 that has been skeptical of the power of federal regulators, 0:13:59.520 --> 0:14:04.000 including by striking down the Chevron doctrine that had judges 0:14:04.120 --> 0:14:07.280 deferring to agencies and interpretations of the law. 0:14:07.679 --> 0:14:10.640 I personally don't think this is kind of outside of 0:14:11.080 --> 0:14:14.560 what's to be expected from this particular court. I think 0:14:14.600 --> 0:14:19.000 that this court is very fixated on not necessarily tearing 0:14:19.080 --> 0:14:22.920 down the authority of a particular agency, but making sure, 0:14:23.200 --> 0:14:27.120 especially with this particular Supreme Court, they are very focused 0:14:27.160 --> 0:14:30.720 on making sure that a particular agency does not exceed 0:14:30.800 --> 0:14:33.680 the authority that was originally granted to it. And so, 0:14:33.800 --> 0:14:36.520 for instance, I use the FTC as an example. Obviously 0:14:36.560 --> 0:14:39.280 we're talking about the FDA with this particular case, but 0:14:39.720 --> 0:14:41.560 and you know those probably I think it was three 0:14:41.640 --> 0:14:43.920 or four years ago now, there was a ruling that 0:14:43.960 --> 0:14:47.880 effectively said, hey, the FTC has gone lead beyond the 0:14:47.960 --> 0:14:50.760 bounds of what the authority that was originally given to 0:14:50.800 --> 0:14:54.080 them by commas. You know, in the military, you called 0:14:54.080 --> 0:14:57.600 a mission increase and you set out for objective A, 0:14:57.800 --> 0:14:59.480 and then the next thing you know you're going after 0:14:59.560 --> 0:15:03.840 be F and it's like, you know, before you know it, 0:15:03.880 --> 0:15:06.520 everybody started asking the question of all, right, well, when 0:15:06.560 --> 0:15:09.240 did the FTC get into the business of going after 0:15:09.960 --> 0:15:13.680 these types of cases, and so with this particular issue, 0:15:14.040 --> 0:15:17.120 I think the Supreme Court is looking at it and saying, again, 0:15:17.200 --> 0:15:20.240 this is kind of how I started my comments was, well, 0:15:20.360 --> 0:15:24.040 at a very high level, why did we create the FDA? Well, 0:15:24.080 --> 0:15:27.560 the FDA was created because back in the eighteen hundred 0:15:27.720 --> 0:15:30.240 there was a severe problem with the quality of food 0:15:30.760 --> 0:15:33.520 and there were effectively snake oil salves and out there 0:15:33.560 --> 0:15:37.160 selling drugs that were doing series armed particulars. And so 0:15:37.440 --> 0:15:40.880 as a society, we decided we should probably have an 0:15:40.920 --> 0:15:45.600 agency that's responsible for regulating the food and the drugs 0:15:45.640 --> 0:15:48.760 that are sold and marketed in the United States of America. 0:15:49.360 --> 0:15:51.000 And when we cut to the red tape of that, 0:15:51.040 --> 0:15:53.920 what does that mean? How do we keep Americans safe? 0:15:54.120 --> 0:15:56.400 And so when you look at what the FDA is 0:15:56.440 --> 0:16:00.720 doing here, they're saying, we are creating these oles because 0:16:00.720 --> 0:16:04.480 when you're trying to keep teenagers safe, you know, we 0:16:04.560 --> 0:16:08.840 have eighty years worth of literature and research that pretty 0:16:08.920 --> 0:16:13.160 convincingly proved that smoking is bad for you. It's really 0:16:13.200 --> 0:16:16.160 bad for your lungs. It causes lung cancer. And I 0:16:16.160 --> 0:16:19.880 don't think there's anybody that disagrees with that. And these cigarettes, 0:16:20.400 --> 0:16:23.520 while they are a better alternative, it's still not great 0:16:23.560 --> 0:16:26.960 for your health. And the FDA has presented some pretty 0:16:26.960 --> 0:16:31.440 convincing evidence again that kind of goes beyond whatever your 0:16:31.440 --> 0:16:35.120 political views may be, and it's kind of unequivocal that 0:16:35.320 --> 0:16:38.160 e cigarettes are probably not good for the lungs of teenagers. 0:16:38.360 --> 0:16:41.400 And so the Supine Court is looking at this and saying, well, 0:16:42.000 --> 0:16:45.440 the FDA has been tasked with keeping teenagers safe, and 0:16:45.880 --> 0:16:48.360 they are now passing involves in regulations that are very 0:16:48.400 --> 0:16:52.600 focused on keeping teenagers safe. Kind of straightforward, you know, 0:16:53.120 --> 0:16:55.840 even in this concern, Supreme Court has to look at 0:16:55.840 --> 0:16:58.200 it and say, the job, FDA, you're doing. 0:16:58.200 --> 0:17:01.560 Your job is Joining his campaign, Trump said that he 0:17:01.720 --> 0:17:06.320 was going to save vaping basically, and during the oral arguments, 0:17:06.600 --> 0:17:10.280 the attorney for the companies pointed to that, so, what's 0:17:10.320 --> 0:17:14.679 the effect of a new administration? Can the FDA just 0:17:14.760 --> 0:17:18.280 do a one to eighty on E flavored cigarettes? 0:17:18.960 --> 0:17:23.960 Obviously, whenever there's a new administration, there's always every federal 0:17:24.000 --> 0:17:27.120 agency there's going to be a significant shift in policy. 0:17:27.560 --> 0:17:30.119 So whoever takes over the FDA is going to be 0:17:30.160 --> 0:17:33.080 a Donald Trump appoint to e and they are going 0:17:33.119 --> 0:17:37.480 to execute me. What the wishes of President Trump. Now, 0:17:37.560 --> 0:17:40.840 I will say that when President Trump says, you know, 0:17:40.920 --> 0:17:44.080 I'm going to support e cigarette, he can do that 0:17:44.320 --> 0:17:47.520 and still kind of ad yere to what the Supreme 0:17:47.560 --> 0:17:49.640 Court is talking about here, because keep in mind, thinking 0:17:49.680 --> 0:17:52.480 about who did he appoint as his head of Department 0:17:52.520 --> 0:17:55.840 of Health and Human Service Arekji, And they've already talked 0:17:55.880 --> 0:17:58.520 about saying, all right, we're going to, you know, use 0:17:58.560 --> 0:18:01.600 a lot of scrutiny with respect to the drugs that 0:18:01.640 --> 0:18:04.679 we are administering to the American public. So when you 0:18:04.720 --> 0:18:06.560 look at what's going on here, let me say this 0:18:06.600 --> 0:18:08.280 because I want to be quit. I am by no 0:18:08.359 --> 0:18:11.760 means beaten up on the e cigarette industry at all. 0:18:12.080 --> 0:18:15.120 What's that state here is the fact that the SBA 0:18:15.359 --> 0:18:19.880 believes that the e cigarette company are advertising and marketing 0:18:19.920 --> 0:18:23.080 their products to people who are not legally authorized to 0:18:23.119 --> 0:18:25.760 buy their products. I probably should have started with that. 0:18:26.320 --> 0:18:29.120 And so what the FDA is saying here is, hey, 0:18:29.280 --> 0:18:32.800 e cigarette companies, if you want to put billboards up 0:18:32.840 --> 0:18:35.800 on every single billboard along every major freeware in the 0:18:35.920 --> 0:18:38.560 United States to say, if you are eighteen and up, 0:18:38.840 --> 0:18:42.080 you should really buy my product, knock yourself out but 0:18:42.119 --> 0:18:46.159 the problem is is the data suggests that the flavored 0:18:46.200 --> 0:18:50.160 products that you are marketing, more fourteen, fifteen and sixteen 0:18:50.240 --> 0:18:52.879 year olds are buying your product than eighteen and ups. 0:18:53.400 --> 0:18:56.280 And we think that is very intentional on your part, 0:18:56.359 --> 0:18:58.840 and that you are aware of the fact that you're 0:18:58.880 --> 0:19:03.159 advertising in marketing is targeting and being more effective with 0:19:03.240 --> 0:19:06.000 people who are not even legally authorized to buy your product. 0:19:06.119 --> 0:19:08.679 That's what they're taking issues with. And I think that 0:19:08.840 --> 0:19:11.720 handedly when you look at who President Trump depicted for 0:19:11.920 --> 0:19:14.480 his Department of Health and Human Services are As K. Junior, 0:19:15.320 --> 0:19:18.480 and then his other mandate of I will support e 0:19:18.560 --> 0:19:21.119 cigarette companies, I don't really I think he can achieve 0:19:21.200 --> 0:19:25.120 both of those objectives. He's effectively saying, hey, e cigarette companies, 0:19:25.760 --> 0:19:27.960 if you want to increase your profits themselves to the 0:19:28.080 --> 0:19:30.040 eighteen and up, so be it. As long as you 0:19:30.040 --> 0:19:33.320 don't break any laws, go forward, but you can't market 0:19:33.320 --> 0:19:35.359 your products at thirteen, fourteen, fifteen year old. 0:19:35.440 --> 0:19:38.760 Thanks so much, Sean. That's Sean Collins, a partner at 0:19:38.800 --> 0:19:42.600 Straddling Yoga, Carlson and Ralth And for those who are 0:19:42.720 --> 0:19:47.159 counting on President elect Trump to change the rules for 0:19:47.280 --> 0:19:50.080 flavored e cigarettes, so let's take a look at his 0:19:50.920 --> 0:19:56.679 various positions. During his first administration. In twenty nineteen, Trump 0:19:56.720 --> 0:20:00.000 threatened to ban most flavored East cigarettes from the market 0:20:00.280 --> 0:20:03.120 due to concerns over the appeal to children. He later 0:20:03.240 --> 0:20:06.520 backed off the ban after it was met with industry resistance. 0:20:07.200 --> 0:20:10.560 In twenty twenty, his ban on certain East cigarette pods 0:20:10.680 --> 0:20:15.000 made by companies like Jewel Labs prohibited flavored e liquids, 0:20:15.240 --> 0:20:18.960 but allowed menthol and tobacco products on the market. He 0:20:19.040 --> 0:20:22.080 also signed a law that raised the federal legal age 0:20:22.080 --> 0:20:26.520 for purchasing tobacco from eighteen to twenty one, which vaping 0:20:26.600 --> 0:20:31.480 proponents say lowered youth vaping numbers. So stay tuned. Coming 0:20:31.560 --> 0:20:34.520 up next on the Bloomberg Law Show, The Justice has 0:20:34.560 --> 0:20:38.080 once again faced a question over the role that US 0:20:38.200 --> 0:20:42.720 court should play in returning properties stolen from Holocaust survivors 0:20:43.040 --> 0:20:47.400 by foreign countries during World War II. I'm June Grosso 0:20:47.520 --> 0:20:52.040 and you're listening to Bloomberg. The Supreme Court once again 0:20:52.160 --> 0:20:55.320 struggle with the role that US courts should play in 0:20:55.359 --> 0:20:59.560 returning properties stolen by foreign countries during World War two 0:21:00.119 --> 0:21:04.760 to its original owners. In several cases brought by Holocaust survivors, 0:21:04.800 --> 0:21:08.520 against foreign nations. The justices have wrestled with how to 0:21:08.640 --> 0:21:13.160 balance the international friction that can result from hauling sovereign 0:21:13.240 --> 0:21:16.920 nations into US courts, while at the same time fulfilling 0:21:17.000 --> 0:21:21.040 Congress's intent to allow suits in some cases. In a 0:21:21.080 --> 0:21:25.199 case the Justice is heard on Tuesday, Holocaust survivors and 0:21:25.240 --> 0:21:29.800 their families say Hungary and its National Railroad stole property 0:21:29.800 --> 0:21:34.080 from Jews while transporting them to concentration camps. The question 0:21:34.240 --> 0:21:37.320 is whether the US is the proper place to resolve 0:21:37.400 --> 0:21:40.800 the legal dispute. Joining me is mc Sanaila, a partner 0:21:40.840 --> 0:21:44.320 at Complex Appellate Litigation Group. So MC, we have seen 0:21:44.640 --> 0:21:48.040 similar cases before. In fact, we've seen this case at 0:21:48.040 --> 0:21:49.280 the Supreme Court before. 0:21:49.720 --> 0:21:52.080 You know, this isn't an art case. This is the 0:21:52.760 --> 0:21:57.399 really all kinds of property case. Most of these cases 0:21:57.440 --> 0:22:00.679 are involved in some kind of Holocaust art. But this 0:22:00.840 --> 0:22:04.080 is yes, we sent the people off to the camp, 0:22:04.400 --> 0:22:09.520 and we also took all of their property and transported 0:22:09.560 --> 0:22:12.639 that on the rail line. So they've been trying to, 0:22:13.240 --> 0:22:16.639 you know, make this claim and have been really, like 0:22:16.800 --> 0:22:21.320 many of these Holocaust claims, really bouncing back and forth 0:22:21.400 --> 0:22:25.639 between the Supreme Court, the Federal Court of appeal the 0:22:25.720 --> 0:22:31.400 district court on some very threshold issues which often come 0:22:31.480 --> 0:22:35.240 up in these cases involving sovereign immunity. You know, under 0:22:35.359 --> 0:22:39.640 the foreign Sovereign mediac can you do the Hungarian government 0:22:39.880 --> 0:22:44.880 or some other countries government for these activities. 0:22:45.200 --> 0:22:48.040 We've talked about this so many times. I'm surprised this 0:22:48.280 --> 0:22:50.120 issue isn't more settled. 0:22:50.680 --> 0:22:53.119 Yeah, I mean, I was just looking back at some 0:22:53.240 --> 0:22:56.720 of the sovereign immunity questions that have come up in 0:22:56.760 --> 0:23:00.760 the Holocaust context, and really one of the last, you know, 0:23:00.840 --> 0:23:04.520 ultimately successful ones was Altman back in two thousand and four, 0:23:04.640 --> 0:23:07.879 where the question there was just whether the Foreign Sovereign 0:23:07.920 --> 0:23:13.879 Immunity that applied retroactively or not and therefore allowed Maria 0:23:13.920 --> 0:23:19.520