By Timothy S. Donahue

Top Takeaways:

• Injunction lifted: The Eighth Circuit vacated a preliminary injunction blocking Iowa’s vapor-products directory law, finding challengers are unlikely to succeed on their federal preemption claim.
• State authority upheld: The majority ruled the Tobacco Control Act permits states to impose additional sales, distribution and reporting requirements tied to FDA authorization.
• Case continues: The lawsuit returns to federal district court for further proceedings, meaning the appellate decision resolves the preliminary injunction but does not end every claim in the case.

The U.S. Court of Appeals for the Eighth Circuit has lifted a preliminary injunction blocking Iowa’s e-cigarette directory law, handing the state a significant victory in a closely watched dispute over whether states may restrict vape sales based on a product’s federal regulatory status.

In a July 30 decision, the three-judge panel vacated the lower court’s injunction and remanded the case to the U.S. District Court for the Southern District of Iowa. The majority concluded that the challengers had standing to sue but were unlikely to prevail on their argument that the federal Tobacco Control Act preempts Iowa’s law.

Iowa enacted House File 2677 in 2024. The law requires manufacturers to certify products for inclusion in a state directory and generally prohibits the sale of vapor products not listed.

To qualify, a product must have FDA marketing authorization or meet specified criteria, including a timely submitted premarket tobacco product application that remains under review or has not reached an effective final decision. Manufacturers must also submit product information, pay a per-product fee, and appoint an agent for service of process in Iowa.

In December 2024, a coalition led by Iowans for Alternatives to Smoking & Tobacco, together with manufacturers, distributors, vape retailers, and consumers, sued the Iowa Department of Revenue and Director Mary Mosiman.

In May 2024, U.S. District Judge Rebecca Goodgame Ebinger preliminarily blocked enforcement after finding the plaintiffs were likely to show that Iowa had improperly inserted itself into the FDA’s premarket review and enforcement system.

The Eighth Circuit rejected that analysis.

Writing for the majority, Judge Jonathan A. Kobes Grasz said Iowa’s requirements fall within the Tobacco Control Act’s provisions that preserve state authority over tobacco sales and distribution. The court found that although HF 2677 involves federal premarket review, it is also a state sales and information-reporting measure protected by the law’s savings clause.

“Therefore, under the plain text of the TCA, HF 2677 is not preempted,” the court said.

The plaintiffs argued that Iowa was effectively enforcing federal tobacco law despite a federal statute that reserves enforcement of the Food, Drug and Cosmetic Act to the United States. They also contended that the directory interfered with the FDA’s discretionary approach to unauthorized e-cigarettes, under which the agency prioritizes enforcement rather than pursuing every product lacking authorization.

The majority drew a distinction between federal law and an agency’s enforcement priorities.

“The Supremacy Clause gives priority to ‘the Laws of the United States,’ not the law enforcement priorities or preferences of federal officers,” the opinion said, quoting a 2020 Supreme Court decision. The panel added that Iowa’s law does not require companies to violate or deviate from federal requirements. Instead, compliance with the federal premarket framework is a condition of satisfying the state law.

The court relied in part on the Supreme Court’s 1949 decision in California v. Zook, which upheld a state transportation law that mirrored a federal permit requirement. Applying that reasoning, the majority said Iowa may incorporate federal requirements into its sales law without creating a conflict.

“HF 2677 mirrors federal law; compliance with the TCA is a precondition for compliance with HF 2677,” the court said.

Judge James B. Loken agreed that the injunction should be vacated but wrote separately to caution against resolving the full obstacle-preemption question on the current record.

Loken said additional evidence may be needed on Iowa’s intended enforcement of the law and how that enforcement would interact with the FDA’s authority. He therefore concurred in the judgment but did not join the majority’s broader conclusion that the law is definitively not preempted.

The ruling is important beyond Iowa, as states increasingly adopt vape directories that link lawful sales to FDA authorization or application status. In April, the Seventh Circuit upheld a similar Wisconsin law against a federal preemption challenge, reinforcing the emerging appellate view that states retain substantial authority to restrict the retail sale of e-cigarettes, even when their requirements reference the federal PMTA process.

The Iowa litigation is not over. The Eighth Circuit remanded the case for further proceedings, and Thursday’s ruling did not resolve the plaintiffs’ federal and state equal protection claims. However, the decision removes the preliminary federal barrier that had prevented Iowa from enforcing its directory law, subject to any further court action or administrative decision by the state.