September 2024 – State Attorneys General Blog

On September 3, 2024, a multistate coalition of 20 attorneys general filed an amicus brief before the U.S. Supreme Court in support of a decision by the U.S. Food and Drug Administration (FDA) to deny companies the ability to market and sell certain flavored e-cigarette products across state lines.

The amicus brief emphasized what the attorneys general described as the “serious health risks” of flavored e-cigarettes (particularly for youth), and argued that the FDA’s statutory authority over the introduction of new tobacco products into interstate commerce is a crucial complement to state and local regulation of flavored e-cigarettes. The attorneys general explained that while states have adopted a variety of measures to restrict sales of flavored e-cigarettes, these products continue to flow through interstate commerce, necessitating continued FDA oversight.

The case is Food and Drug Administration v. Wages and White Lion Investments, LLC, dba Triton Distribution, et al., and arises from a lawsuit filed by companies challenging the FDA’s denial of their applications to market and sell flavored e-cigarette products across state lines. In January 2024, the Fifth Circuit Court of Appeals ruled in favor of the applicants’ challenge. The attorneys general encourage the Supreme Court to reverse that decision.

The amicus brief was filed by the attorneys general for Arizona, California, Colorado, Connecticut, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington. A copy of the brief may be found here.

On September 9, 42 state attorneys general joined a National Association of Attorneys General Letter to House and Senate leadership supporting legislation to establish a surgeon general’s warning label on algorithm-driven social medial platforms, stating that social media is associated with significant mental health harms for adolescents. According to the state AGs, such platforms represent a serious public mental health threat, closely linked to youth depression, anxiety and suicidal ideation.

The Letter follows previous efforts taken by state attorneys general— including Arkansas, Indiana, Iowa, Kansas, Nebraska, New Hampshire, and Utah—but advocates for federal intervention.

According to the AGs’ letter, a federally mandated surgeon general’s warning “would be a consequential step toward mitigating the risk of harm to youth.” The authors urge Congress to seriously consider this and other steps to protect youth in the face of emerging technologies, citing the Senate’s passage of the Kids Online Safety Act and Children and Teens’ Online Privacy Protection Act as evidencing bipartisan commitment to protecting youth online.

The following state attorneys general signed the Letter: Alabama, Arkansas, American Samoa, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, U.S. Virgin Islands, Utah, Vermont, Virginia, Washington, Wisconsin and Wyoming.