By Timothy S. Donahue

Top Takeaways:

• State pushes back: Massachusetts says retailers are unlikely to win.
• Federal fight: Shops argue local enforcement conflicts with FDA authority.
• Precedent cited: State says appeals courts have upheld similar restrictions.

Massachusetts wants its vape crackdown to stand.

Massachusetts officials urged a federal judge to reject an attempt by smoke shops and convenience retailers to block enforcement of restrictions on certain vaping products and nicotine pouches, arguing that the businesses are unlikely to prevail because federal appeals courts have repeatedly upheld similar state tobacco restrictions.

The filing is the state’s response to a lawsuit filed by more than a dozen Massachusetts retailers challenging enforcement actions by the Department of Public Health and numerous municipalities.

The retailers sued in June, alleging that Massachusetts officials were illegally forcing them to remove vaping products and nicotine pouches from store shelves, even though federal law gives the U.S. Food and Drug Administration authority to decide whether new tobacco products can be marketed.

The case, Ohmharsh Corp. et al. v. Goldstein et al., was filed in the U.S. District Court for the District of Massachusetts. The defendants include Massachusetts Public Health Commissioner Robbie Goldstein and the municipalities of Barnstable, Beverly, Cambridge, Danvers, Lynn, Medford, Plymouth, Salem, and Somerville.

The retailers contend that the state and local enforcement regime conflicts with the federal Tobacco Control Act and with the FDA’s authority over premarket tobacco product applications.

Their complaint alleged that enforcement had caused sales to fall dramatically and sought to halt Massachusetts officials’ crackdown while the litigation proceeds.

Massachusetts is now arguing that there is little likelihood the retailers will ultimately succeed.

According to the state’s latest filing, appellate courts considering similar challenges have allowed states to regulate tobacco-product sales without improperly intruding on the FDA’s federal authority. Massachusetts argues that its restrictions concern where and under what circumstances products can be sold, rather than making federal determinations about whether products receive FDA marketing authorization.

That distinction lies at the center of the dispute.

Under federal law, new tobacco products generally require FDA marketing authorization before entering the U.S. market. States and municipalities, however, retain substantial authority over tobacco retail sales.

Massachusetts has some of the country’s most restrictive tobacco regulations. Since 2020, flavored tobacco products, including menthol cigarettes and flavored vaping products, have generally been restricted to licensed smoking bars for on-site consumption. The state treats menthol as a flavor for purposes of those restrictions.

The current lawsuit also extends to nicotine pouches, making the dispute particularly relevant as the FDA authorizes oral nicotine products.

The retailers are not merely asking the court to review individual enforcement actions. Their challenge raises the broader question of how far state and local governments can go in restricting products subject to the FDA’s federal tobacco regulatory system.

Massachusetts says existing case law answers that question in its favor.

The state asks the court to deny the retailers’ request for preliminary relief and to allow enforcement to continue as the underlying lawsuit proceeds. No final ruling on the legality of the Massachusetts enforcement regime has been issued.