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When it rejected RJRV's menthol application, Jones says, "the FDA brushed over its prior statements about the low popularity of menthol-flavored e-cigarettes among youth and substantial benefits for cigarette smokers who make the switch." That "sudden turnabout," she adds, "further reinforces" the conclusion that the FDA's decision was "likely arbitrary, capricious, or otherwise unlawful." The FDA's current position, the 5th Circuit says, amounts to a new "tobacco product standard" that was never formally proposed and therefore did not go through the "notice-and-comment rulemaking procedures" that the APA requires

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