Federal court decisions confirm: States can say “no” to illegal e-cigarettes

Across the country, states and local governments are trying to remove unauthorized, flavored e-cigarettes from store shelves. The tobacco industry is working just as hard to stop them.

As of August 2026, only 45 e-cigarette products have been authorized for sale by the Food and Drug Administration, meaning most vape products are being sold illegally. To combat sales of unauthorized products, a growing list of states have compiled directories of e-cigarette products that they are allowing to be sold in their jurisdictions.

The tobacco industry has repeatedly tried to argue that states do not have authority to dictate the tobacco and nicotine products sold in their communities. However, federal courts continue to uphold their right to restrict which products can be sold within their borders.

Two recent cases, in North Carolina and Iowa, provide crucial legal support for states and local communities seeking to protect public health. Nicotine use can harm the developing brain, and nicotine addiction can amplify feelings of stress and anxiety, posing a significant threat to the health of teens and young adults.

Industry arguments fall flat

The federal Tobacco Control Act (TCA) gives the FDA important authority to review tobacco products and confirm their safety for public health. However, the plain language of the statute affirms that states and local governments still have authority to impose further restrictions so long as they do not attempt to regulate manufacturing practices or the premarket review process.

The tobacco industry has repeatedly tried to argue in court that FDA’s power preempts, or overrides, state and local authority to restrict sales — a stance that has now been repeatedly rejected.

Courts repeatedly rule in favor of state authority

In July 2026, the Fourth and Eighth Circuits both rejected industry arguments that federal law preempts state authority. 

North Carolina: In Vapor Technology Association v. Wooten, the Fourth Circuit upheld a law creating a directory of vaping products that may be legally sold in the state. Tobacco industry plaintiffs argued that North Carolina was interfering with the FDA’s role; however, the court disagreed, explaining that the state was regulating what may be sold within its borders, not taking over the FDA’s job of reviewing products. This case garnered support from a bipartisan coalition of 28 other state attorneys general who filed an amicus brief in support of North Carolina’s position.

Iowa: On the same day, the Eighth Circuit reached a similar conclusion in Iowans for Alternatives to Smoking & Tobacco, Inc. v. Mosiman. Iowa had passed a law creating a state directory for e-cigarettes and prohibiting sales of products not listed in that directory. A lower court had blocked the law, but the Eighth Circuit stepped in, confirming that the industry was unlikely to prove that federal law preempts Iowa’s restrictions.

These rulings join the Seventh Circuit’s April 2026 decision in Wisconsinites for Alternatives to Smoking & Tobacco, Inc. v. Casey, which upheld Wisconsin’s similar e-cigarette product directory law. 

A familiar industry playbook

This is not the first time the tobacco industry has claimed that the authority of states and local governments to restrict tobacco and nicotine sales results in the preemption of federal law. 

The 2026 cases build on earlier decisions involving flavored tobacco restrictions:

• In 2013, the Second Circuit upheld New York City’s restrictions on flavored tobacco product sales in U.S. Smokeless Tobacco Manufacturing Co. v. City of New York. The court approached the ordinance as a regulation of sales, not a hidden attempt to regulate manufacturing standards. Consequently, the Court found that the local sale ban was not subject to preemption by federal law.
• Later in 2013, the First Circuit reached a similar result in National Association of Tobacco Outlets, Inc. v. City of Providence, upholding the restriction of the sale of certain flavored tobacco products.
• In 2022, the Ninth Circuit confirmed the same principle in R.J. Reynolds Tobacco Co. v. County of Los Angeles, upholding Los Angeles County’s ban on the sale of flavored tobacco products.
• The Eighth Circuit confirmed this reasoning in the 2023 case R.J. Reynolds Tobacco Co. v. Edina, ruling that the City of Edina was not restricted by the preemption doctrine from banning the sale of flavored tobacco products.

The TCA preserves state and local authority to regulate and restrict the sale of some or all nicotine and tobacco products, while leaving product standards to the FDA. While the tobacco industry continues to fight these rulings in the name of preemption, these new cases continue to confirm that states have authority over what tobacco and nicotine products are available to their constituents. 

This conclusion is increasingly relevant given that illegal e-cigarettes, most of which are flavored, disposable, and contain large amounts of nicotine, continue to flood the market.

Full list of cases cited: 

• Fourth Circuit: Vapor Technology Association v. Wooten
• Eighth Circuit: Iowans for Alternatives to Smoking & Tobacco, Inc. v. Mosiman
• Seventh Circuit: Wisconsinites for Alternatives to Smoking & Tobacco, Inc. v. Casey
• Second Circuit: U.S. Smokeless Tobacco Manufacturing Co. v. City of New York
• First Circuit: National Association of Tobacco Outlets, Inc. v. City of Providence
• Ninth Circuit: R.J. Reynolds Tobacco Co. v. County of Los Angeles
• Eighth Circuit: R.J. Reynolds Tobacco Co. v. Edina