The FDA just notched another courtroom win in its long fight over flavored vapes. On June 24, the U.S. Court of Appeals for the Fifth Circuit upheld the agency's denial of marketing authorization for menthol-flavored e-cigarettes, reinforcing the FDA's power to demand proof that flavored products help adult smokers more than they hook kids. For anyone tracking which flavors survive the federal gauntlet, it's a notable signpost.
What happened
A three-judge panel denied a petition by VDX Distro Inc. and Vapetastic LLC, which had challenged the FDA's rejection of VDX's menthol-flavored Four Seasons e-cigarette products. The case is VDX Distro Inc. v. FDA, No. 24-60537.
Writing for the panel, Judge Cory Wilson said the FDA denied the application after concluding the products' benefits to adult smokers "did not outweigh the countervailing risks to youths." VDX had argued the agency overstepped its authority, used an unconstitutionally vague standard, and acted arbitrarily in applying the "appropriate for the protection of the public health" (APPH) test. The panel disagreed on each point, describing the FDA's comparative-efficacy approach as "a balancing test, not a ban."
The court also rejected VDX's claim that the FDA leaned on outdated youth-use data, noting the agency knew youth e-cigarette use had declined since 2019 but reasonably concluded the problem "remained significant." And it found the FDA had actually reviewed VDX's marketing plan — unlike in some earlier disputes — but reasonably deemed its youth-access safeguards insufficient.
Why it matters
The ruling follows the U.S. Supreme Court's 2025 decision in FDA v. Wages and White Lion Investments, which largely upheld the FDA's approach to flavored-vape application denials. Stacked together, these decisions tell the industry that courts are mostly siding with the agency's framework — even as the FDA has, in recent months, authorized a handful of menthol and flavored products that came with stronger evidence or device-access restrictions like biometric unlocking. The door to flavored vapes isn't slammed shut; it's just narrow, and the FDA controls the key.
What this means for vapers
Practically speaking, the menthol and fruit flavors that have already earned FDA authorization aren't going anywhere because of this ruling — and the agency has signaled it will clear more products that bring the right data. What this decision does is confirm that unauthorized flavored products remain legally vulnerable, and the companies behind them face long odds in court. For shoppers, that's another reason to favor brands and devices working through the legal pathway rather than betting on gray-market flavors that could disappear with the next enforcement sweep.
"The comparative-efficacy standard is a balancing test, not a ban," the panel wrote, adding that "the TCA charges FDA with making those comparisons, and we see no reason why the APPH's comparative exercise cannot focus on flavor."
The bottom line
Menthol fans, don't read this as a flavor ban — authorized products are still on shelves, and more are clearing review. But the Fifth Circuit just reaffirmed that the FDA holds the upper hand over which flavored vapes get to stay. Expect the legal authorization path, not the courtroom, to decide what's on the shelf next year. We'll keep flagging which flavors make the cut.
