Photo of Azim ChowdhuryPhoto of Eric P. Gotting
Seal of the Supreme Court of the United States

On June 14, 2023, Keller and Heckman Partners Eric Gotting and Azim Chowdhury, on behalf of a group of public health experts, filed an amicus brief with the Supreme Court of the United States (SCOTUS) in support of Avail Vapor’s writ of certiorari petitioning SCOTUS to review the Fourth Circuit’s decision to uphold the Food and Drug Administration’s (FDA) marketing denial order of the company’s Premarket Tobacco Product Application (PMTA) for its non-tobacco flavored e-liquids. As detailed in the brief, amici are public health experts with extensive experience related to tobacco and nicotine products:  David B Abrams, Ph.D., Scott D. Ballin, J.D., Clive D. Bates, M.Sc., Martin J. Jarvis, D.Sc. O.B.E., Raymond S. Niaura, Ph.D., Thomas J. Miller, J.D., Steven A. Schroeder, M.D., and David T. Sweanor, J.D.

The brief is intended to provide relevant scientific background on the comparative health impacts of ENDS with combustible cigarettes. The main arguments of the brief are as follows:  

  1. ENDS Are, Beyond Reasonable Doubt, Much Safer Than Cigarettes
  2. ENDS Help Adult Smokers Quit and Can Reach Many Adults Who Would Not Otherwise Quit Smoking
  3. ENDS Flavors Are Important to Adults Trying to Quit Smoking
  4. Youth Vaping Has Declined Markedly Since 2019, With Most Youth Vaping Being Infrequent, Non-Addictive, And Temporary, And More Frequent and Intense Vaping Generally Limited to Adolescents Who Are Otherwise Likely to Smoke
  5. Young People Do Not Generally Use the Refillable Tank Devices Sold in Vape Shops, But Instead Use More Mass-Market Products
  6. Claims That Vaping Is a Gateway to Smoking Are Based on A Misunderstanding of The Evidence
  7. Because Smoking and Vaping Are Linked, Measures Like E-Liquid Flavor Bans Can Cause More Smoking or Other Damaging Unintended Consequences

The writ of certiorari is pending at the Supreme Court. We will keep you updated on the progress of the appeal.