By Timothy S. Donahue
Top Takeaways:
- Court rejects injunction: A Fifth Circuit panel denied an emergency request to pause Mississippi’s ban on non-FDA-approved vape products pending appeal.
- Standing was key: Judges held plaintiffs lacked Article III standing, making injunctive relief inappropriate before resolving the merits.
- State law remains enforced: Mississippi’s directory-based restrictions on vape sales continue as industry groups pursue their appeal.
A federal appeals court has denied a motion to halt enforcement of Mississippi’s law banning the sale of non-FDA-approved vaping products while an industry challenge is pending on appeal.
In an order filed Feb. 11, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit denied an injunction pending appeal in Vapor Technology Association et al. v. Chris Graham. The plaintiffs — a coalition of retailers, distributors, and trade associations in the electronic nicotine delievery system (ENDS) industry — had asked the court to pause enforcement of House Bill 916 while their appeal proceeds. The panel concluded that the challengers lacked the legal standing required to justify emergency relief.
Mississippi’s statute, enacted in March 2025, requires that only ENDS products and vaping devices listed in a state-maintained directory of FDA-approved products be sold at retail. Products not included in that directory generally cannot be sold, and manufacturers must certify that their devices have received federal marketing authorization. Violations are subject to civil and criminal penalties.
The appeals court explained that to obtain an injunction pending appeal, challengers must show a likelihood of success on the merits, irreparable harm, that the balance of equities favors relief, and that an injunction is in the public interest. Because the plaintiffs failed to demonstrate “a legally cognizable injury” sufficient to establish Article III standing, the court did not reach the remaining factors and denied the motion.
The coalition, which includes the Vapor Technology Association, the Mississippi Small VTC Businesses Association, and several individual retailers, argued that the law conflicts with federal authority under the U.S. Food, Drug, and Cosmetic Act and improperly allows state enforcement of FDA standards. They contend the statute is preempted by federal law and violates constitutional principles.
A separate challenge in late 2025 saw a Mississippi federal court deny a temporary restraining order against enforcement of the law.
Mississippi’s vape law, which took effect in mid-2025 and has already prompted product seizures and retailer compliance actions, reflects a broader state-level movement to limit the sale of e-cigarette products not authorized by the FDA.
