Fourth Circuit denies rehearing bid over stay allowing Virginia e-cigarette rules to be enforced

Key Takeaways

• The Fourth Circuit denied en banc or other rehearing of its stay decision in the Virginia vape case
• Petitioners: Nova Distro Inc. and Tobacco Hut and Vape Fairfax Inc.
• The court said no judge requested a poll on the rehearing petition
• The stay keeps Virginia’s contested provisions enforceable while the appeal proceeds
• The parties’ appeals were consolidated in January
• The stay is tied to the outcome of a pending North Carolina case involving similar issues

2Firsts, March 5, 2026

According to Law360, the U.S. Court of Appeals for the Fourth Circuit will not hold an en banc or other rehearing of its decision to stay an order that had blocked enforcement of certain Virginia e-cigarette regulations. In a brief order filed Tuesday, the court denied a petition by Nova Distro Inc. and Tobacco Hut and Vape Fairfax Inc., stating that no judge requested a poll on the petition.

The rehearing request followed the Fourth Circuit’s earlier decision granting Virginia a stay pending appeal of an order by U.S. District Judge David J. Novak that had blocked enforcement of some provisions of the challenged state law after finding preemption to the extent the state law was enforcing federal law. 

The district court also dismissed some of the vape companies’ other claims. The vape companies appealed, and the state appealed; the two appeals were consolidated in January.

Virginia sought a stay from the Fourth Circuit, and in early February the panel granted the stay pending a decision in a separate North Carolina case that similarly challenges that state’s law restricting sales of unapproved e-cigarettes.

The vape companies then sought rehearing and reconsideration, arguing the panel’s stay decision conflicts with U.S. Supreme Court precedent and fails to distinguish between state laws that mirror federal requirements but operate independently and state laws that create state-level enforcement of federal law—an argument they have made about the Virginia statute. The court’s Tuesday order denied that rehearing petition.

Image Source: Law360