By Timothy S. Donahue

Top Takeaways:

• Virginia is asking a federal judge to toss a suit from NOVA Distro and Tobacco Hut & Vape Fairfax challenging the state’s new vapor-product directory.
• The directory, effective Dec. 31, allows sales only for products with FDA authorization or a timely, accepted PMTA; others face a 60-day sell-through then $1,000-per-day penalties.
• Plaintiffs say the law is federally preempted and functions as a de facto flavor ban, while the state argues it simply enforces PMTA-based market access inside Virginia.

Virginia’s attorney general and tax commissioner are asking a federal court to dismiss a lawsuit from two local vape businesses that claims the state’s new vapor-product directory unlawfully bans most flavored e-cigarettes.

NOVA Distro Inc. and Tobacco Hut and Vape Fairfax Inc. filed suit Oct. 15 in the U.S. District Court for the Eastern District of Virginia against Attorney General Jason Miyares and Tax Commissioner James J. Alex, seeking to stop the directory before it takes effect Dec. 31.

State officials, in their motion to dismiss, argue that the directory does not regulate product standards or marketing in a way that conflicts with federal law but instead imposes a condition on what can be sold within Virginia, aligning with the state’s enforcement of federally mandated premarket tobacco product application (PMTA) rules.

Similar directory laws have been adopted in multiple states as the U.S. Food and Drug Administration’s enforcement against unauthorized flavored vapes has lagged, and concerns about youth use have prompted legislatures to consider state-level sales restrictions.

Virginia’s 2025 law requires the attorney general’s office to publish a public list of liquid nicotine and vapor products certified for sale in the Commonwealth. After publication, any product not on the list cannot be sold at retail. To be listed, a product must either have FDA marketing authorization or a filed PMTA that has been accepted and is still under federal review.

The plaintiffs argue that the framework effectively bans non-tobacco flavored products because most lack FDA approval and would be excluded. Their complaint states the statute is “preempted, arbitrary, and destructive to lawful small businesses,” and claims the state is overstepping its authority, which is reserved for the FDA under the federal Tobacco Control Act.

Under Virginia law, retailers have a 60-day period to sell non-listed inventory after the directory is published. After this period, selling, distributing, or importing a non-listed vapor product can result in civil penalties of $1,000 per day per product, and manufacturers face the same penalties if they ship non-listed items into Virginia.