Top Takeaways:
- Virginia is taking its flavored-vape enforcement fight to the Fourth Circuit after a partial injunction.
- Judge Novak found that the plaintiffs were likely to succeed on federal preemption claims under the FDCA/TCA.
- Other constitutional claims were dismissed, narrowing the dispute to Supremacy Clause and preemption issues.
Virginia has asked the U.S. Court of Appeals for the Fourth Circuit to overturn a federal judge’s order that partially blocked the Commonwealth from enforcing its new restrictions on nicotine vapor products — a case that hinges on whether Virginia’s law is preempted by federal tobacco statutes.
In a notice filed in the U.S. District Court for the Eastern District of Virginia, the Commonwealth said it intends to challenge U.S. District Judge David J. Novak’s December ruling on Chapter 23.2 of Title 59.1 of the Virginia Code, which regulates nicotine vapor products and ties legal sales to federal premarket status.
In his Dec. 18, 2025 memorandum opinion, Novak granted a preliminary injunction in part, concluding that the plaintiffs — NOVA Distro Inc., Tobacco Hut and Vape Fairfax Inc. — were likely to succeed on their claim that portions of Virginia’s law are preempted by the Federal Food, Drug, and Cosmetic Act (FDCA), as amended by the Family Smoking Prevention and Tobacco Control Act (TCA).
Novak wrote that while Congress preserved state authority to regulate tobacco product sales in certain ways, the FDCA/TCA framework limits states from imposing requirements that mirror federal rules in a way that conflicts with Congress’s chosen national scheme.
At the same time, Novak dismissed other claims brought by the plaintiffs, including arguments that Chapter 23.2 violates the Virginia Constitution or the Equal Protection Clause, leaving the case to proceed primarily on the federal preemption question.
The lawsuit is part of a broader wave of litigation across the U.S. challenging state laws that restrict vapor products based on FDA authorization or application status — including similar legal fights in other states cited in Novak’s decision.
The case is NOVA Distro Inc. et al. v. Miyares et al., No. 3:25-cv-00857, in the U.S. District Court for the Eastern District of Virginia.
