- The 4th US Circuit Court of Appeals has upheld a North Carolina law blocking sales of vapes that lack federal government approval.
- The decision affirms a federal trial judge's decision not to issue an injunction against the law.
- The court split, 2-1, over whether the case's plaintiffs had legal standing to pursue the case.
The 4th US Circuit Court of Appeals has upheld a North Carolina law banning sales of vapes that lack federal government approval. The decision Thursday affirms a federal trial judge’s ruling.
A coalition of 28 states had filed a brief supporting North Carolina in the legal dispute.
Appellate judges split, 2-1, on whether the plaintiffs had legal standing to pursue a case against 2024’s House Bill 900, now SL 2024-31.
“For almost a decade, the Food and Drug Administration (‘FDA’) has said that electronic nicotine delivery systems, more commonly known as ‘e-cigarettes’ or ‘vapes,’ are tobacco products that require FDA approval before being sold,” Judge Stephanie Thacker wrote for the majority. “But the FDA has been slow to enforce that requirement. Trying to curb the influx of potentially harmful products within its borders, the State of North Carolina has recently enacted legislation that sharply curtails the ability of vape manufacturers and retailers to sell vapes that lack FDA approval within North Carolina’s borders.”
A vape trade group, a manufacturer, two retailers, and a customer filed suit in 2025 against North Carolina’s state revenue secretary and top legislative leaders. They argued that federal law pre-empted SL 2024-31.
US Chief District Judge Richard Myers refused to grant an injunction blocking the law.
“Finding no error, we affirm,” Thacker wrote.
Thacker and Judge Steven Agee agreed that the plaintiffs had legal standing to pursue the suit.
“S.L. 2024-31 puts the Commercial Appellants in a Catch-22: either stop selling their most popular products and lose revenue, or carry on business as usual and face fines and civil suits from competitors for deceptive trade practices,” Thacker wrote. “No matter which path they take, S.L. 2024-31 threatens the Commercial Appellants with financial harm.”
“That ‘pocketbook injury’ is the ‘classic’ injury in fact for the purpose of Article III,” Thacker added. Article III is the section of the US Constitution that spells out the jurisdiction of federal courts.
Thacker noted that the 4th Circuit decision on standing mirrored the 7th Circuit’s recent ruling in a similar case from Wisconsin.
While the plaintiffs have standing, the majority rejected the arguments for an injunction. Appellate judges ruled that the state law did not conflict with the 2009 Family Smoking Prevention and Tobacco Control Act, or TCA.
“The FDA is allowing unapproved vape products to enter the market — that is the FDA’s prerogative,” Thacker wrote. “But North Carolina remains free to prohibit the sale of those products within its borders. That is a valid exercise of North Carolina’s police powers, and it is entirely consistent with the Savings Clause found in the TCA. Therefore, S.L. 2024-31 does not impede any congressional purpose enshrined in the TCA.”
Agee wrote a concurring opinion focusing on the appellate panel’s disagreement over standing. He cited US Supreme Court precedents that made the issue unclear.
“The resulting confusion, as witnessed by the multiple opinions in this case, can and should be resolved once and for all by the Supreme Court upon its next occasion to address standing,” Agee wrote.
Judge Marvin Quattlebaum dissented because of a disagreement with his colleagues about standing.
“Is lost revenue from illegal activity an ‘injury in fact’ for purposes of Article III standing?” he asked. “The plaintiffs say yes, and the majority agrees. According to them, North Carolina’s regulatory scheme for electronic nicotine delivery system (ENDS) products — which makes it illegal to sell certain products in North Carolina — has cost the plaintiffs revenue.”
“But selling these products is illegal under the Federal Food, Drug, and Cosmetic Act (FDCA), too,” Quattlebaum added. “And the plaintiffs don’t challenge the FDCA. In fact, they say it preempts the North Carolina scheme.”
“In my view, the plaintiffs don’t have standing to challenge a state law that prohibits what is already prohibited under an undisputedly valid federal law,” the dissent explained. “So, while I agree with the majority that the FDCA doesn’t preempt the North Carolina scheme, before we even get there, I’d remand this case with instructions to dismiss for lack of standing.”
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