Virginia Seeks to Dismiss E-Cigarette Ban Challenge, Citing Lack of Legal Standing

Key points

• Parties: Plaintiffs – Novo Distro Inc. and Tobacco Hut and Vape Fairfax Inc.; Defendants – Virginia Attorney General and Tax Commissioner
• Issue: Challenge to Virginia’s ban on unapproved and flavored e-cigarettes
• State argument: Plaintiffs lack standing; unapproved products illegal under federal law; state retains authority to regulate
• Plaintiffs’ claim: Ban conflicts with federal law and benefits Big Tobacco
• Legal status: State invokes sovereign immunity and seeks dismissal

2Firsts, December 10, 2025 – According to Law360, Virginia’s Attorney General Jason S. Miyares and the state’s tax commissioner have asked a federal court to reject a bid to block enforcement of the state’s ban on unapproved e-cigarettes, arguing that the companies leading the lawsuit lack standing because their products are illegal under federal law.

In a brief filed Thursday, the state argued that Novo Distro Inc. and Tobacco Hut and Vape Fairfax Inc. have no legally recognized right to sell unapproved products, and thus cannot show they have suffered an injury or irreparable harm sufficient for an injunction.

The companies sued in October, claiming Virginia’s flavored vape ban is preempted by federal law and the result of Big Tobacco lobbying aimed at squeezing out smaller retailers.

Virginia moved to dismiss the case in November, asserting that neither the Federal Food, Drug, and Cosmetic Act (FDCA) nor the Tobacco Control Act preempts state authority to regulate tobacco sales. The state argued it could legally prohibit all e-cigarette sales if it chose.

The defendants further contended that the FDA’s temporary non-enforcement policy does not imply federal opposition to state action but reflects limited agency resources.

They also invoked sovereign immunity, arguing that Virginia has not consented to be sued in federal court and that no ongoing violation of federal law is alleged.

Responding to claims that the ban unfairly benefits large tobacco companies, the state said the statute applies equally to all firms, requiring FDA approval for any product sold.

“Plaintiffs would prefer a laxer standard allowing them to sell more profitable flavored products without providing scientific evidence,” the state argued. “It is not arbitrary for the Commonwealth to conclude that banning unapproved e-cigarettes benefits public health.”

Plaintiffs’ attorney Stewart R. Pollock of Moran Reeves & Conn PC stated: “This law unfairly favors Big Tobacco and restricts small businesses from competing by limiting vape sales to a narrow list of pre-approved products.”

Image source: Law360