By Timothy S. Donahue

Top Takeaways:

• Judge seeks new briefing: A federal judge has ordered vape companies challenging Pennsylvania’s vapor product directory law to address recent appellate rulings that upheld similar state laws.
• Legal landscape shifts: The order follows decisions by the Seventh and Eighth Circuits rejecting key federal preemption arguments against vape registry laws in Wisconsin and Iowa.
• Broader implications: The Pennsylvania case could become another significant test of states’ authority to restrict the sale of e-cigarettes based on FDA authorization status.

Challenges to state vape registry laws are having a tough time in the courts. A federal judge overseeing a challenge to Pennsylvania’s vapor product directory law has directed the parties to address recent appellate court rulings that upheld similar laws in other states, signaling that those rulings may influence the outcome of the closely watched case.

Under a recent court order, the judge instructed the plaintiffs—vape manufacturers, distributors, and retailers challenging Pennsylvania’s law—to explain why their claims should survive in light of recent federal appellate decisions on comparable state regulatory schemes. The defendants were also ordered to address how those rulings affect the pending litigation.

The order follows two federal appeals courts’ rejection of key arguments that state vapor product directory laws are preempted by the federal Family Smoking Prevention and Tobacco Control Act (TCA).

Most recently, the Eighth Circuit lifted a preliminary injunction on Iowa’s directory law, concluding that the plaintiffs were unlikely to succeed on their argument that the TCA overrides the state’s authority to regulate the sale and distribution of vapor products. Earlier this year, the Seventh Circuit reached a similar conclusion in litigation involving Wisconsin’s directory law.

Pennsylvania’s law, like those in Iowa and Wisconsin, ties lawful retail sales of many vapor products to their status under the U.S. Food and Drug Administration’s premarket tobacco product application (PMTA) process. Products generally must either have FDA marketing authorization or meet specified statutory criteria to remain eligible for sale in the state.

The plaintiffs argue that Pennsylvania’s law improperly intrudes on the FDA’s exclusive authority to regulate tobacco products and conflicts with Congress’ framework for reviewing PMTAs. State officials contend that the law regulates only which products may be sold in Pennsylvania, an area that Congress expressly reserved for the states.

The judge has not ruled on the merits of those arguments. Instead, the latest order requires both parties to analyze how the recent appellate decisions affect the Pennsylvania litigation before the court decides the pending motions.