After the Food and Drug Administration took forceful steps against fruit and dessert flavored e-cigarettes, it turned its attention to tobacco and menthol and denied the applications of importers and manufacturers to market the menthol-flavored versions, a decision the Third Circuit affirmed in a divided opinion.

In 2020, the FDA began to take "aggressive action" to remove fruit- and dessert-flavored electronic nicotine delivery systems (ENDS) from the "stream of commerce," according to the opinion. At that time, the FDA set aside menthol- and tobacco-flavored ENDS to deal with at a later date. But recent studies and additional market data led the FDA to deny the applications of manufacturers such as Logic Technology Development, the plaintiff in this case, to market menthol-flavored ENDS, according to the opinion.