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Two Virginia vape companies have filed a federal lawsuit seeking to block enforcement of the state’s newly enacted flavored e-cigarette ban, arguing the measure is unconstitutional because it improperly authorizes state officials to enforce federal tobacco laws—a role reserved exclusively for the U.S. Food and Drug Administration (FDA) under the Supremacy Clause of the U.S. Constitution.

The complaint, filed Wednesday in the U.S. District Court for the Eastern District of Virginia, was brought by wholesaler Nova Distro Inc. and retailer Tobacco Hut and Vape Fairfax Inc. against Virginia Attorney General Jason Miyares and other state officials. The plaintiffs are asking the court to declare the law invalid and to issue an injunction preventing its enforcement.

Plaintiffs Say Virginia’s Law “Usurps Federal Authority”

The vape sellers take aim at Virginia’s Chapter 23.2, a state statute that effectively bans the sale of any vape products not approved by the FDA. Under the law, Virginia’s attorney general is empowered to create and enforce a “vape directory” listing all products legally permitted for sale. Retailers caught selling unlisted products could face fines of $1,000 per day per product.

To qualify for inclusion, products must have received premarket authorization from the FDA or be under active review by the agency. The plaintiffs argue that this structure essentially forces Virginia to act as an enforcement arm of the FDA, violating 21 U.S.C. § 337(a), which explicitly reserves the enforcement of the Federal Food, Drug, and Cosmetic Act (FDCA) to the federal government.

“While generally Virginia may properly retain its broad police power regarding the sale of vapes in the Commonwealth, it cannot bring enforcement actions that were otherwise exclusively entrusted to the FDA by Congress,” the plaintiffs said.
“Because the existence of the FDCA is a critical element of the vape ban, it is impliedly preempted pursuant to federal law.”

Plaintiffs: Law Creates a “State-Endorsed Monopoly” for Big Tobacco

Beyond the constitutional issue, the plaintiffs claim the law was pushed by major tobacco interests, particularly Richmond-based Altria Group Inc., to eliminate competition from smaller vape businesses.

The lawsuit accuses Juul Labs Inc., Logic Technology Development LLC, NJOY LLC, R.J. Reynolds Vapor Co., and parent companies Altria Group Inc., Reynolds American Inc., Philip Morris USA Inc., John Middleton Co., U.S. Smokeless Tobacco Co., and Helix Innovations LLC of being the primary beneficiaries of the law.

“The vape ban disproportionately benefits the largest vape manufacturers in the country … by effectively forcing smaller, local vape manufacturers and retailers, including plaintiffs, out of the Virginia vape market,” the complaint states.
“Indeed, Richmond-based Altria spearheaded such lobbying efforts, and approximately $632,202 was spent on such efforts to regulate heated tobacco and nicotine vapor products between 2023 and 2024.”

The plaintiffs argue that the law grants a “state-endorsed monopoly” to Big Tobacco companies, which already hold FDA authorizations for certain e-cigarette products—authorizations that most small manufacturers lack due to the costly and lengthy premarket review process.

FDA Enforcement Discretion at the Center of the Dispute

Nova Distro and Tobacco Hut contend that the FDA has deliberately chosen not to prohibit the sale of many vape products still under review, recognizing that such products may help adult smokers transition away from cigarettes. They argue Virginia’s law improperly overrides that federal policy choice.

“Accordingly, the FDA has continually exercised its discretion not to take regulatory or enforcement action with respect to small tobacco vapes,” the complaint said.

Legal Representation and Case Information

Nova Distro Inc. and Tobacco Hut and Vape Fairfax Inc. are represented by Stewart R. Pollock, Samantha R. Romano, Rebecca A. Roberts, and Eric G. Reeves of Moran Reeves & Conn PC.

Counsel information for the Commonwealth of Virginia was not immediately available.

The case is NOVA Distro Inc. et al. v. Virginia Attorney General Jason Miyares et al., Case No. 3:25-cv-00857, in the U.S. District Court for the Eastern District of Virginia.