By Timothy S. Donahue
Top Takeaways:
Appeal fight: Texas’ acting comptroller is asking the Fifth Circuit to reverse a lower-court ruling that allowed vape companies and a trade group to challenge the state’s foreign-sourced vape restrictions.
Sovereign immunity claim: Texas argues the comptroller cannot be sued because the office lacks direct enforcement authority under the law.
Directory battles expand: The case is part of a growing wave of litigation surrounding state vape-directory and foreign-product restriction laws.
Texas’ acting comptroller is asking the U.S. Court of Appeals for the Fifth Circuit to block a lawsuit brought by vape companies and a trade association challenging the state’s restrictions on certain foreign-linked vaping products.
According to court filings, the comptroller’s office argues that it is entitled to sovereign immunity and therefore cannot be sued under the law. The underlying dispute centers on a Texas law that restricts e-cigarette products using liquids sourced from China and other countries designated as foreign adversaries.
Vape companies and the Vapor Technology Association previously sued to block enforcement, arguing that the law improperly interferes with federal tobacco regulation and threatens large portions of the U.S. vape market’s supply chain.
A lower court allowed parts of the lawsuit to proceed, prompting Texas officials’ latest appeal. The comptroller’s office now argues that because it does not directly enforce criminal penalties under the statute, it should not remain a defendant in the case.
The legal fight reflects a broader escalation in state-level vaping regulation, as states increasingly adopt directory laws, product certification systems, and restrictions targeting unauthorized disposable vape products linked to Chinese manufacturing.
Texas’ law is among the more aggressive state measures because it specifically targets products linked to “foreign adversaries,” thereby adding geopolitical and trade implications to the ongoing regulatory battle.
The Fifth Circuit has already emerged as a central venue for nicotine litigation involving state directory laws and federal FDA authority. Earlier this year, the appeals court denied an injunction request by vape retailers and trade associations challenging Mississippi’s vape-directory law, ruling that the challengers failed to establish standing.
In that case, Fifth Circuit Judge Don Willett wrote that “Article III standing is a prerequisite to our jurisdiction.” The broader legal landscape surrounding vaping regulation has intensified following multiple recent federal court decisions on FDA premarket tobacco application enforcement and venue selection disputes.
Last year, the U.S. Supreme Court also allowed vape manufacturers greater flexibility in choosing which federal circuit courts may hear challenges to FDA marketing denial orders.
For the nicotine industry, the Texas litigation could have major implications beyond a single state. Many unauthorized disposable vape products sold in the United States rely heavily on Chinese manufacturing and supply chains, while states increasingly try to limit product availability through FDA-linked directories and restrictions on foreign sourcing.
Industry groups argue that such laws risk effectively banning large portions of the market before federal regulators complete broader PMTA reviews. State officials, meanwhile, increasingly argue that the measures are necessary to curb illicit products and limit youth access to unauthorized vaping products.
