The FDA’s Rocky Relationship with Big Tobacco

The Food and Drug Administration has been taking steps to prohibit underage smoking and nicotine use for years—notably banning fruity flavors for Juul vapes in 2020—but its attempt to effectively ban Juul Labs from manufacturing and distributing vaping devices in June is a signal of just how serious the Biden administration’s campaign against e-cigarette companies is. Juul products are available for now—a federal court blocked the FDA ban one day after it was issued—but the battle is far from over. 

The FDA’s targeting of the tobacco industry, and subsequently the e-cigarette market, is nothing new. The American Lung Association drove momentum for anti-smoking legislation in individual states from the 1960s until the 2000s, but boasted only a few wins in Congress (the 1989 law prohibiting smoking on all domestic flights being one of them). The first scientific reports in the 1950s revealing that smoking cigarettes was linked to cancer prompted three waves of Big Tobacco lawsuits. 

Tobacco companies prevailed in the first wave of litigation by successfully resisting responsibility for negligent advertising and manufacturing, but the second wave gained momentum with the landmark Supreme Court case Cipollone v. Liggett in 1992. The case opened the door for individuals to sue cigarette companies that made “fraudulent” or “inaccurate” statements in their advertising, or that misled the public about the health risks of smoking.

A third wave of lawsuits was more successful. In 1998, 52 attorneys general in states and territories signed the Master Settlement Agreement (MSA) alongside four of the largest tobacco companies in the U.S. in what became the largest civil litigation settlement in U.S. history. The MSA aimed to recover billions of dollars in health care costs for smoking-related illnesses and settled dozens of state lawsuits. The settlement also strengthened restrictions on tobacco advertisements as well as prohibited marketing to kids under 18.