The case centered on whether the FDA could deny authorization for flavored e-cigarette products without providing manufacturers adequate guidance on scientific evidence requirements. The Court upheld the FDA’s near-blanket rejection of flavored vaping products, endorsing the agency’s regulatory approach that treats flavors as inherently appealing to youth regardless of their benefits to adult smokers. This ruling effectively gives the FDA unchecked authority to remove these products from the legal market under the guise of protecting public health, despite mounting evidence of their harm reduction potential.

Prohibition doesn’t keep people from getting their hands on these products. All it does is drive the market for those products underground. Black markets lead to less transparency, compromised product safety, and criminalization of otherwise law-abiding citizens.

The Numbers

As Mark Twain once said, “There are three types of lies: lies, damned lies, and statistics.”

Regulators make much use of the latter when they repeatedly cite that nearly 6% of students use vaping products. That’s one way to put it. Another way to put it is that 94% don’t.

Youth vaping has been declining steadily in recent years, with the FDA’s own 2024 National Youth Tobacco Survey documenting a significant drop from 2.13 million youth e-cigarette users in 2023 to 1.63 million in 2024.

On top of that, cigarette smoking among youth has reached the lowest level ever recorded by the survey, at just 1.4%. If your goal is less youth smoking, then this is not the time to tinker with failed policy levers that could reverse decades of progress.

Meanwhile, the evidence supporting vaping’s effectiveness as a smoking cessation tool grows more compelling with each study. A landmark 2021 study found that daily e-cigarette usage among tobacco smokers can increase the likelihood of quitting smoking by eightfold compared to non-vapers. This is a finding that should give regulators pause before removing these options from adult smokers. King’s College London’s comprehensive review, the largest of its kind, concluded that vaping is “substantially less harmful than smoking,” representing a small fraction of the health risks of combustible cigarettes.

The Experts Drowned Out By Moral Panic

While anti-vaping activists have dominated the public conversation through emotional appeals and selective evidence, the scientific community offers a more nuanced view. In a publication in the American Journal of Public Health, fifteen former presidents of the Society for Research on Nicotine and Tobacco, the field’s premier scientific organization, called for a more balanced approach to vaping regulation that recognizes both youth protection and adult harm reduction needs.

These experts, whose careers have been dedicated to reducing tobacco-related harm, warned that single-minded focus on youth vaping risks undermining decades of progress in reducing smoking rates. They urged “the health community, media, and policymakers to more carefully weigh vaping’s potential to reduce adult smoking-attributable mortality”—a plea that has gone largely unheeded as regulatory momentum builds. This position aligns with assessments from international bodies like the Royal College of Physicians and Public Health England, which have concluded that e-cigarettes are significantly less harmful than traditional cigarettes.

The Black Market: Prohibition’s Demon Child

Just as Prohibition gave birth to speakeasies and bootlegging operations, the unintended consequences of flavor bans are already manifesting in a burgeoning vaping black market. Despite the FDA’s efforts to remove flavored vaping products from legitimate channels, these products remain widely available through unregulated sources. Since 2020, the number of different e-cigarette devices for sale in the U.S. has tripled to over 9,000, with most being unauthorized products from overseas manufacturers, a predictable outcome.

Peer-reviewed studies demonstrate that banning flavored tobacco products often simply shifts consumer behavior rather than eliminating it, a pattern that repeats with prohibited substances and behaviors throughout history. When flavored products are banned, users adapt by purchasing from out-of-state retailers, illegal sellers, online sources, or by stocking up before bans take effect. This mirrors the familiar pattern seen during alcohol prohibition: when demand persists, prohibition doesn’t eliminate products but merely changes how they’re obtained and who profits from their sale.

The public health implications are grim: Black market vaping products lack quality control standards and often contain harmful additives. The 2019 vaping-related lung injury outbreak was linked primarily to illicit THC vaping products containing vitamin E acetate. This outbreak is a stark reminder that driving products underground can create greater health risks than regulating them properly. In our regulatory repetition complex, we seem doomed to recreate the same conditions that led to thousands of deaths from tainted alcohol during prohibition.

Breaking The Repetition Complex

With Robert F. Kennedy Jr. now overseeing the FDA, we stand at a potentially historical juncture for tobacco harm reduction policy. Kennedy’s vow to overhaul the FDA, combined with the Trump administration’s pledge to protect flavored vaping products, signals a potential shift away from the failed prohibitionist approach that has dominated regulation for years.

The question isn’t simply whether regulators can ban flavored products, the Supreme Court has settled that question, but whether such bans represent wise, proportionate policy that respects the freedom of adult consumers while effectively protecting youth. To break free from our regulatory repetition complex requires acknowledging that sound policy demands balance—not bans.

Just as Freud observed individuals compulsively repeating their traumas, our regulatory system seems trapped in a cycle of prohibition, black markets, and unintended consequences. And just because regulators have power doesn’t mean every exercise of that power serves the public good.

The post The Overreach of Flavor Bans: Why Authority Doesn’t Equal Policy Wisdom appeared first on Free the People.

Some public health commentators bemoaned the withdrawal of the ban, citing it as a loss for public health. On the contrary, this decision presents a valuable opportunity for the FDA to pivot toward effective public health strategies that focus on decentralization, harm reduction, and self determination.

Available evidence on menthol bans points to unintended harm or meager results. In California, for instance, a discarded pack audit showed that even after the state’s menthol ban, 14.1% of collected cigarette packs were still menthol, and another 7% were flavored by consumers themselves—indicating a thriving illicit market. Meanwhile, in Massachusetts, a 58.6% increase in smoking rates among Black women post-ban underscored how prohibition can backfire, especially in communities that disproportionately prefer menthol products.

By rejecting the ban the agency has capacity to address bigger public health concerns, such as streamlining regulatory frameworks that encourage harm reduction and reducing barriers for innovative alternatives for people who smoke.

Rather than rehash a ban that would be difficult to enforce and unlikely to curb cigarette use, the FDA can channel its resources into strategies that empower individuals to make more choices instead of less.

Mounting evidence from both American and international sources indicates that these choice-based harm reduction strategies are far more effective and sustainable than outright prohibitions. A 2020 review, published in Preventive Medicine, underscores how choice-based harm reduction strategies are effective at significantly cutting down the risks associated with traditional tobacco use. By examining population-level smoking trends, this peer-reviewed research highlights that when vapers have access to lower-risk devices, overall smoking harms decline.

Corroborating these findings, the Royal College of Physicians (RCP) in the United Kingdom concluded in its landmark 2016 report, Nicotine without Smoke: Tobacco Harm Reduction, that regions with choice-based strategies have less smoking-related harms than regions with bans. This level of reduced harm is precisely why top-down bans, which remove these potentially life-saving alternatives from the market, produce counterproductive outcomes. Instead of driving down nicotine use overall, prohibition can push consumers toward unregulated or illegal products, where health risks and misinformation proliferate.

Even the U.S. Food and Drug Administration (FDA) has acknowledged the significance of differentiating among tobacco products. Its 2019 decision to authorize certain snus products as “Modified Risk Tobacco Products” (MRTP) establishes that some tobacco products can indeed present significantly fewer hazards than combustible cigarettes. Granting these products a lower-risk designation not only validates scientific findings but also sends a critical policy signal: When proven by evidence, safer alternatives should be available for consumer choice rather than restricted by blanket bans.

Public health policymakers who embrace harm reduction principles can avert thousands of smoking-related deaths each year. Shifting away from an abstinence-only or prohibition-focused strategy, and instead providing lower-risk options for nicotine consumption, reflects a more pragmatic and research-driven approach.

Taken together, these studies and expert opinions form a clear consensus: Choice-based solutions—allowing smokers access to regulated, lower-harm alternatives—can work in tandem with existing public health tools to drive down smoking prevalence, reduce the burden of disease, and minimize the emergence of black markets. In contrast, top-down bans run the risk of pushing individuals toward illicit products and sidestepping meaningful regulation, ultimately undermining public health objectives. By upholding consumer choice and scientifically vetted harm reduction strategies, policymakers can more effectively protect both individual and societal well-being.

Having pulled back from a top-down prohibition on menthol cigarettes, the FDA should seize the moment to establish a regulatory framework that embraces innovation, self-determination, and meaningful harm reduction.

We need policies that will deter illicit markets by increasing the number of safe alternatives available legally. If we’re serious about curbing smoking-related deaths and protecting public health, the solution is simple: more freedom for safer choices, fewer top-down bans, and a steadfast commitment to empowering consumers, not driving them underground.

As Benjamin Franklin wrote in a letter to the Pennsylvania General Assembly, “those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.” As Americans, we tend to value liberty as much and often more than safety. The FDA should heed this value and implement an effective, choice-based approach to tobacco policy.

The post FDA Kills Menthol Ban: A Triumph for Harm Reduction appeared first on Free the People.