“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.
