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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.