By Timothy S. Donahue

Top Takeaways

• Preemption at issue: Vape companies argue North Carolina unlawfully ties sales to FDA authorization, a power reserved for federal regulators.
• Virginia parallel: The case mirrors a pending Fourth Circuit appeal over Virginia’s vape registry law, already blocked by a lower court.
• Regional impact: The ruling could shape how far states can go in restricting vape sales across the Fourth Circuit.

Vape manufacturers and sellers urged the Fourth Circuit on Thursday to block North Carolina from enforcing its new e-cigarette sales restrictions, arguing the law is preempted by federal tobacco statutes and improperly deputizes the state to enforce U.S. Food and Drug Administration policy.

The challenge, led by the Vapor Technology Association (VTA), targets North Carolina provisions that condition the lawful sale of vaping products on compliance with FDA requirements, including whether a product has received premarket authorization. Attorneys for the industry argue that under the Family Smoking Prevention and Tobacco Control Act and the Food, Drug, and Cosmetic Act, Congress granted the FDA exclusive authority to determine which nicotine products may be marketed, leaving states limited to regulating retail sales, not market eligibility.

The VTA, representing a group of vape manufacturers, distributors, and retailers, argues that North Carolina’s law effectively bans products the FDA has not yet removed from the market, even though the regulatory agency’s enforcement remains case-by-case. The state, in turn, has defended the law as a consumer-protection measure to curb the sale of unauthorized and youth-appealing products.

During oral argument, judges questioned whether the law merely regulates sales — a power states are permitted to exercise — or instead crosses into federally preempted territory by conditioning market access on FDA authorization.

The dispute closely parallels a Virginia vape case pending before the same court, in which plaintiffs Nova Distro Inc. and Tobacco Hut & Vape Fairfax Inc. obtained a lower-court injunction blocking enforcement of Virginia’s vape registry law. In that case, a federal judge ruled that Virginia’s statute was preempted because it tied lawful sales directly to FDA authorization status.

Although the North Carolina and Virginia laws differ in structure, both hinge on the same legal question: whether states may enforce vape bans by importing federal authorization standards into state law. A ruling in either case could shape the legality of similar vape directory and registry laws spreading nationwide.