By Timothy S. Donahue

Top Takeaways:

• Appeal dismissed: The Tenth Circuit declined to consider a challenge to Utah’s flavored e-cigarette ban because the businesses failed to properly identify the relevant order in their notice of appeal.
• No merits ruling: The court did not decide whether Utah’s flavor restrictions are preempted by the federal Tobacco Control Act.
• Ban remains: The district court’s refusal to preliminarily block Utah’s restrictions remains undisturbed.

Utah vape shops lost their appeal before the court reached the flavor ban.

The U.S. Court of Appeals for the Tenth Circuit dismissed an appeal by the Utah Vapor Business Association and The Smoke House challenging Utah’s restrictions on flavored e-cigarettes, ruling that the businesses failed to properly appeal the district court order they sought to overturn.

The Aug. 31 published decision leaves intact a lower court’s refusal to issue a preliminary injunction against Utah’s flavor ban, which prohibits the sale of e-cigarettes with flavors other than tobacco or menthol.

The businesses argued that the restrictions are preempted by the federal Family Smoking Prevention and Tobacco Control Act because they constitute a tobacco product standard, an area reserved for federal regulation.

But the Tenth Circuit never reached that question.

“Plaintiffs’ appeal fails at the jurisdictional step because their notice of appeal did not identify the district court’s order denying a preliminary injunction of the Flavor Ban,” Judge David Ebel wrote for the three-judge panel. “Thus, we cannot proceed to the merits.”

Utah enacted its Electronic Cigarette Amendments in 2024. General tobacco retailers, such as gas stations, were already prohibited from selling flavored e-cigarettes, but specialty tobacco retailers had been permitted to sell them.

The plaintiffs said flavored e-cigarettes accounted for 89% of their business before the amendments and that some specialty retailers had already been forced to close.

The original lawsuit challenged both the flavor restrictions and an inspection program that permitted local health departments to conduct warrantless searches of tobacco retailers. The district court declined to preliminarily block the flavor ban but granted relief from the inspection provisions.

Both sides appealed. Utah subsequently amended the inspection program, and the parties agreed that those issues were moot, leaving the industry’s preemption challenge as the only issue before the Tenth Circuit.

That is where the procedural mistake proved decisive.

The businesses’ notice of appeal identified several March 2025 orders but omitted the separate February order denying their request to block the flavor ban.

“Future plaintiffs facing similar circumstances are advised to file a notice of appeal that identifies explicitly each appealable interlocutory order that they seek to challenge,” the court wrote.

The ruling does not, on the merits, endorse Utah’s flavor ban. But the panel noted that four other federal appeals courts — the First, Second, Eighth, and Ninth circuits — have rejected similar arguments that state or local restrictions on flavor sales are preempted by the Tobacco Control Act.

The case is Utah Vapor Business Association Inc. et al. v. State of Utah et al., No. 25-4046.