By Timothy S. Donahue
Top Takeaway:
Court review set: The Ohio Supreme Court has agreed to hear an appeal seeking to revive lawsuits against three vape retailers.
Legal clash: Lower courts dismissed the cases, ruling that federal law governs whether vaping products may be marketed and sold.
Consumer law test: Yost argues Ohio can still use its Consumer Sales Practices Act to target retailers that allegedly misled consumers.
The Ohio Supreme Court will decide whether state officials can use consumer protection laws to crack down on retailers selling unauthorized vaping products.
In an order issued on Feb. 17, the court agreed to review an appeal filed by Ohio Attorney General Dave Yost, who is seeking to revive lawsuits against three vape shops accused of selling flavored e-cigarettes that lack federal approval.
Yost filed lawsuits in July 2024 against retailers in Orrville, Delaware, and Cincinnati, alleging that the businesses violated Ohio’s Consumer Sales Practices Act by selling flavored vape products that had not received required approval from the U.S. Food and Drug Administration.
His office also alleged that the retailers failed to inform customers that the products could not legally be sold in the United States.
Announcing the lawsuits last year, Yost described the enforcement action as a consumer protection effort.
“You don’t have any idea what is in those vape cartridges,” Yost said. “This is a consumer protection issue, particularly when it comes to our youngsters that are still developing. The idea these unregulated, unauthorized vapes are on the market is a real danger.”
Federal law mandates that manufacturers of new tobacco products, including e-cigarettes, secure premarket approval from the FDA before they can be sold legally in the United States. The agency has approved only a small number of vaping products, mostly in tobacco and menthol flavors.
Nevertheless, Ohio’s Fifth District Court of Appeals dismissed the attorney general’s lawsuits, ruling that federal law overrides state actions in this matter. The court stated that the enforcement of the federal Food, Drug, and Cosmetic Act is the responsibility of the federal government.
Yost has argued that his office is not trying to enforce federal law directly. Instead, he claims Ohio is using its own consumer protection law against businesses that allegedly misled customers by selling products illegally marketed.
