Supreme Court Will Hear Crucial Triton Vapes Case

    As of July 1, the United States Supreme Court had four vape cases on its list for the last conference of this session. On July 2, one of the four—FDA v. Wages and White Lion Investments, L.L.C., dba Triton Distribution, et al.—was granted its certiorari, or judicial review, and will be heard by the court during the next session, which begins in October.

    The outcome of what’s widely known as the Triton case will be of the utmost importance to the landscape of vaping in the United States, and to people’s future access to a range of harm reduction products.

    The new development comes in the wake of the Supreme Court’s hugely significant and controversial overturning of the Chevron doctrine, on June 28, which weakened the power of federal agencies to set and implement rules in many domains. The Chevron decision has prompted some differing reactions from tobacco harm reduction stakeholders, amid speculation about its impacts in this specific area.

    But the Triton development can’t immediately be seen in that light, when it comes at the request of the US Food and Drug Administration, in an attempt to overturn a crushing legal defeat for the agency.

    In 2021, the FDA issued millions of Marketing Denial Orders (MDO) for vapor products under its premarket tobacco products application (PMTA) process. Triton manufactures flavored vaping products, which broadly speaking are key to many people’s ability to switch from cigarettes.

    It took the FDA until June 21, 2024 to authorize any vaping products in non-tobacco flavors, despite the fact that adults find a range of flavors most helpful for harm reduction. The agency has long been accused of applying a de facto flavor ban for political reasons. That recent authorization, when it came, applied to just four menthol vaping products.

    The stakes of the Triton case have long been considered far higher than the fate of the company itself.

    The earlier onslaught of MDOs caused much anger and confusion among businesses and consumers. It pushed several smaller companies to take their case to the courts, seeking relief from financial ruin. Other companies have sought relief from the Supreme Court, but such requests were denied.

    Triton has fought the US Food and Drug Administration (FDA) for several years since receiving MDOs in 2021. In October that year, a court granted the company a full stay on its MDOs, allowing its products to stay on the market as the legal battle continued.

    Triton was the first vape company to be granted a full stay in that initial rush to the courts. It became something of a symbol of resistance to what tobacco harm reduction advocates viewed as the arbitrary or anti-harm reduction actions of the FDA. The stakes of its case have long been considered far higher than the fate of Triton itself.

    In January 2022, Triton petitioned the courts to vacate its MDOs. But any hope of a quick victory was short-lived.

    In July 2022, Triton lost its appeal in the Fifth Circuit Court of Appeals. Two judges sided with the FDA, while one dissented. But one of Triton’s partners, Todd Wages, vowed not to give up “until every door is closed.”

    Triton’s attorneys then petitioned the Fifth Circuit Court of Appeals to hear the case en banc, which requires a full panel of judges to hear it. Such appeals are rarely granted—only 1 percent of them in the Fifth Circuit. But the court agreed to hear this one in January 2023.

    A year later, in January 2024, Triton won its appeal. The majority decision was remarkably scathing about the FDA’s conduct—stating that the agency acted “arbitrarily and capriciously,” sent PMTA applicants on a “wild goose chase,” and pulled “regulatory switcheroos” in rejecting flavored vape applications en masse.

    Tobacco harm reduction advocates hope the outcome will cement earlier legal victories in the struggle to guarantee access to effective smoking cessation tools. 

    Tobacco harm reduction advocates celebrated this victory, but soon learned that the story would have another chapter. The ruling from the en banc hearing was not unanimous, and the FDA saw an opportunity to reverse it.

    The agency petitioned the Supreme Court to review the case, and that’s now going to happen.

    The status of the other three vape cases on the Supreme Court’s list—Magellan Technologg v. FDA, Logic Technologg v. FDA and Lotus Technology v. FDA—had not been updated at publication time.

    It might still be another year before we know the Supreme Court’s decision on Triton. But tobacco harm reduction advocates hope the outcome will cement earlier legal victories in the struggle to guarantee people’s access to effective smoking cessation tools. 



    Photograph (cropped) by Marielam1 via Wikimedia Commons/Creative Commons 4.0

    • Skip started smoking when she was 10, and quit through vaping in 2015. She is an enthusiastic tobacco harm reduction advocate. She works as a direct service professional at a group home providing services for people living with disabilities. Skip also lives with a disability and was diagnosed with autism, ADHD and depression in 2020. She is the co-founder and a research volunteer for the Safer Nicotine Wiki. She previously owned a vape shop and served as the research fellow for the Consumer Center of the Taxpayers Protection Alliance. She lives in Minnesota.

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