U.S. Ninth Circuit Upholds FDA Denial of MH Global’s Flavored Vape PMTA Applications

Aug.26
U.S. Ninth Circuit Upholds FDA Denial of MH Global’s Flavored Vape PMTA Applications
The U.S. Court of Appeals for the Ninth Circuit upheld the FDA’s denial of MH Global LLC’s applications to market flavored electronic nicotine delivery systems (ENDS). The court ruled that FDA’s comparative-efficacy framework, which requires applicants to show that flavored products provide greater cessation or switching benefits than tobacco-flavored alternatives, is consistent with the Tobacco Control Act’s “appropriate for the protection of the public health” standard. The court also found that FDA was not required to establish the framework through notice-and-comment rulemaking.

Key Points

  • The Ninth Circuit denied MH Global LLC’s petition challenging FDA’s denial of its flavored ENDS marketing applications.
  • The court confirmed that FDA may require product-specific evidence showing flavored products provide greater cessation or switching benefits than tobacco-flavored alternatives.
  • The court found FDA’s comparative-efficacy framework consistent with the Tobacco Control Act’s APPH standard.
  • The ruling confirmed FDA can apply the framework through product-specific adjudications rather than formal rulemaking.
  • The decision reinforces the evidence requirements facing flavored ENDS products seeking PMTA authorization.

2Firsts

August 26, 2026

The U.S. Court of Appeals for the Ninth Circuit has upheld the Food and Drug Administration’s (FDA) denial of marketing applications submitted by MH Global LLC for flavored electronic nicotine delivery systems (ENDS). The court ruled that FDA’s requirement for applicants to demonstrate that flavored products provide greater cessation or switching benefits than tobacco-flavored alternatives is consistent with the Tobacco Control Act’s (TCA) “appropriate for the protection of the public health” (APPH) standard.

The case involved MH Global’s premarket tobacco applications (PMTAs) for flavored ENDS products. FDA previously denied the applications, finding that the company failed to provide reliable evidence that its flavored products offered greater switching or cessation benefits than tobacco-flavored products while facing substantial youth-initiation risks.

Ninth Circuit Upholds FDA’s Comparative-Efficacy Framework

The Ninth Circuit held that FDA’s comparative-efficacy framework was consistent with the TCA.

The court said the APPH standard requires FDA to evaluate tobacco products based on their overall impact on public health, including:

● the likelihood that nonusers may begin using tobacco products; and

● the likelihood that existing users may transition away from more harmful tobacco products.

The court found that these considerations require a comparative assessment of potential benefits and risks.

Accordingly, FDA may require flavored ENDS applicants to provide product-specific evidence showing that their products offer additional public health benefits compared with tobacco-flavored alternatives.

FDA Found MH Global Lacked Sufficient Evidence

FDA determined that flavored ENDS products may increase youth-initiation risks because flavors can increase appeal, repeated use and nicotine exposure.

At the same time, FDA acknowledged that ENDS products may provide benefits for adults who completely switch from combustible cigarettes.

However, the agency concluded that flavored products needed stronger evidence if tobacco-flavored alternatives could provide similar switching benefits with lower youth appeal.

The Ninth Circuit agreed that MH Global had not provided sufficient evidence, noting that the company did not submit randomized controlled trials, longitudinal studies or similarly robust evidence demonstrating superior cessation or switching outcomes.

Court Rules FDA Did Not Need Formal Rulemaking

MH Global also argued that FDA should have established the comparative-efficacy framework through notice-and-comment rulemaking.

The court rejected that argument.

The Ninth Circuit said agencies generally may develop regulatory standards through either rulemaking or individual adjudications unless Congress requires a specific procedure.

The court found that FDA’s use of the framework during PMTA reviews did not violate procedural requirements.

Decision Clarifies Path for Future Flavored ENDS Applications

The ruling does not create an automatic ban on all flavored ENDS products. Instead, it further clarifies the evidentiary standards FDA may apply when reviewing flavored product applications.

For companies seeking authorization in the U.S. market, the decision highlights the need for stronger scientific evidence demonstrating that flavored products provide measurable public health benefits beyond tobacco-flavored alternatives while addressing youth-related risks.

Follow 2Firsts for timely updates on global tobacco and nicotine regulations, market developments and industry trends.

Cover Image Source: VitalLaw


Disclaimer

This article is provided solely for professional research, industry discussion, and informational purposes. Any references to brands, companies, products, technologies, or policies are made for factual reporting and analytical purposes only, and do not constitute endorsement, recommendation, promotion, or advertising by 2Firsts.

Nicotine-containing products, including but not limited to cigarettes, e-cigarettes, heated tobacco products, and nicotine pouches, carry significant health risks. Readers are responsible for complying with all applicable laws and regulations in their respective jurisdictions, including age restrictions and access limitations.

The information contained in this article should not be regarded as investment, legal, medical, regulatory, or commercial advice. While 2Firsts strives to ensure the accuracy and reliability of its content, it does not assume liability for any direct or indirect loss arising from errors, omissions, inaccuracies, or reliance on the information contained herein.

This article is not intended for individuals below the legal age for accessing tobacco or nicotine-related information in their jurisdiction.

 

Copyright Notice

This article is either original content produced by 2Firsts or content reproduced, translated, summarized, or adapted from third-party sources with attribution where applicable. The intellectual property rights of the original content remain with 2Firsts or the respective original rights holders.

No individual or organization may copy, reproduce, distribute, republish, modify, translate, or otherwise use this content without prior authorization. Any unauthorized use may result in legal action.

For copyright-related inquiries, corrections, or removal requests, please contact: info@2firsts.com.

 

AI-Assisted Translation and Editing Notice

Portions of this article may have been translated, edited, or reviewed with the assistance of artificial intelligence tools to improve efficiency and readability. Due to the limitations of AI-assisted translation and editing, discrepancies, omissions, or inaccuracies may exist when compared with the original source.

Where applicable, readers are advised to refer to the original source for the most complete and accurate information. If you identify any errors or believe that any content infringes upon your rights, please contact us at info@2firsts.com, and we will review and address the matter promptly.

Dutch NVWA Seizes Record 277,000 Illegal Vapes; Video Shows “AL FAKHER” Cartons
Dutch NVWA Seizes Record 277,000 Illegal Vapes; Video Shows “AL FAKHER” Cartons
The Dutch Food and Consumer Product Safety Authority, known as the NVWA, seized more than 277,000 illegal vapes near Rotterdam and nearly 150,000 boxes of nicotine pouches in Utrecht and Rotterdam, calling them the largest batches of such products it has found to date. Video footage released by the NVWA shows some cartons in the warehouse bearing the “AL FAKHER / الفاخر” name, though the agency did not identify brands.
Jul.10
Ohio Supreme Court Weighs Whether State Consumer Law Can Restrict Flavored Vape Sales
Ohio Supreme Court Weighs Whether State Consumer Law Can Restrict Flavored Vape Sales
The Ohio Supreme Court is hearing a case involving flavored vape sales and whether state authorities can use consumer protection laws to take action against retailers selling unauthorized vape products. Ohio officials argue that selling unauthorized flavored vapes may constitute consumer deception, while retailers argue that tobacco product regulation falls under federal Food and Drug Administration (FDA) authority and that states cannot impose additional restrictions through consumer laws. The case could affect the scope of state-level vape regulation across the United States.
Aug.06
New Zealand Associate Health Minister Casey Costello Warns on Illicit Cigarettes as Legal Tobacco Sales Halve Over Decade
New Zealand Associate Health Minister Casey Costello Warns on Illicit Cigarettes as Legal Tobacco Sales Halve Over Decade
New Zealand Associate Health Minister Casey Costello said legal tobacco sales in the country have fallen by more than half over the past decade, with sales declining more than 20% in 2025 compared with the previous year. She warned that the decline may not fully reflect lower smoking rates, as increased availability of illicit cigarettes could also be contributing. The government said it would continue strengthening tobacco and vape retail enforcement while monitoring the impact of illicit tobacco on public health and tax revenue.
Aug.26
Reemtsma says German illegal e-cigarette seizures reached 70% of 2025 total, pouches 179%
Reemtsma says German illegal e-cigarette seizures reached 70% of 2025 total, pouches 179%
Reemtsma said its first-half 2026 black-market tracker for tobacco and nicotine products showed a continued rise in officially reported seizures in Germany, with illegal e-cigarette seizures reaching 70% of the full-year 2025 level and snus and nicotine pouch seizures reaching 179% of last year’s total.
Jul.08
Indonesia’s BNN Pushes Total Vape Ban as Health Ministry Tightens Tobacco Packaging Rules, Putting $40 Billion Industry at Risk
Indonesia’s BNN Pushes Total Vape Ban as Health Ministry Tightens Tobacco Packaging Rules, Putting $40 Billion Industry at Risk
Indonesia is entering a new phase of debate over vape and tobacco regulation. The National Narcotics Agency (BNN) has proposed a total vape ban, with some lawmakers supporting stronger restrictions. At the same time, the Health Ministry is advancing tobacco and nicotine regulations under Government Regulation No. 28/2024, including measures such as plain packaging and product controls. Tobacco and vape industries have warned that tighter rules could affect a sector worth around $40 billion, supporting about 6 million jobs and contributing significant tax revenue.
Jul.27
Kantar Study Finds More Than 93% of Vape Products in Ukraine Fail Regulatory Requirements
Kantar Study Finds More Than 93% of Vape Products in Ukraine Fail Regulatory Requirements
According to Interfax-Ukraine, a study conducted by market research firm Kantar Ukraine at the request of major tobacco companies found that more than 93% of vape products in Ukraine did not fully comply with regulatory requirements. The research examined product categories, brand distribution and consumer purchasing channels, showing that pod systems and disposable vapes represent major segments of the market, while offline retail remains the dominant purchasing channel. The findings highlight ongoing compliance challenges in Ukraine’s vape market.
Aug.26