Distributors, retailers sue the state over new vaping law

A group of e-cigarette and vaping product distributors and retailers is suing the state of Iowa to block enforcement of a new law set to take effect in February.

Alternatives to Smoking & Tobacco Inc., Global Source Distribution, Triton Distribution, Smokin Hot, Central Iowa Vapors WDM and Route 69 Vapor filed the lawsuit this month in U.S. District Court for the Southern District of Iowa.

The companies allege that House File 2677, signed into law earlier this year, violates the supremacy clause and equal protection clause of the U.S. Constitution, as well as the equal protection clause of the Iowa Constitution.

State records show House File 2677 was introduced on March 27, 2024, with backing from lobbyists for R.J. Reynolds and other tobacco companies. Lobbyists for the American Cancer Society Action Network declared their opposition to the bill within two days.

The bill was approved in the Iowa House on April 3, 2024, and in the Iowa Senate on April 19, 2024. Gov. Kim Reynolds signed it into law on May 17, 2024.

The law stipulates that manufacturers whose electronic nicotine delivery systems — more commonly known as electronic cigarettes, e-cigarettes and vaping products — are sold in Iowa must certify that its products “have received a marketing authorization” from the Food and Drug Administration or that its application for authorization was filed by September 2020 and is still under review.

The Iowa Department of Revenue is then tasked with producing a publicly accessible directory listing all the certified vaping products — at which point any retailer selling products not on the registry is subject to fines or other enforcement action.

Most vaping products on the market today do not yet have FDA authorization, and the plaintiffs allege the FDA exercises its discretion to enforce federal requirements on a case-by-case basis — which means, they say, that the FDA has deliberately opted not to take enforcement action regarding some “unauthorized” products now on the market.

The plaintiffs claim the limited number of vapor products likely to appear on the state registry of “approved” products when it’s published in January won’t be sufficient for retailers to maintain a profitable business.

They also argue that House File 2677 is preempted by federal law and regulation and that the state’s plans to begin enforcing the law on Feb. 3, 2025, would force many retailers of vaping products to either shut down or incur significant civil penalties.

Their lawsuit also alleges that while the new state law allows for the sale of some unauthorized vaping products that contain tobacco-derived nicotine, it unfairly fails to allow for the sale of any unauthorized products that use non-tobacco-derived nicotine.

In their lawsuit, the plaintiffs also allege that after President-elect Donald Trump takes office in January, the new administration may change the FDA’s enforcement policies in a manner that will allow more electronic nicotine delivery systems to be marketed even while their pre-market applications are pending.

The lawsuit seeks a preliminary and a permanent injunction that would bar the Iowa Department of Revenue from implementing and enforcing the new state law.

The Department of Revenue has yet to file a response to the lawsuit.