Virginia Vape Directory Law Challenged in Federal Court
A new legal battle is unfolding in Virginia as small vape manufacturers and retailers challenge the state’s recently enacted Vapor Product Directory law. The plaintiffs, including Nova Distro, Inc., have filed a lawsuit in the U.S. District Court for the Eastern District of Virginia against Attorney General Jason Miyares and Tax Commissioner James Alex, seeking to block the enforcement of the directory regime passed by the General Assembly in 2024.
Understanding Virginia’s New Directory Regime
The contested legislation, found in Va. Code Ann. §§ 59.1-293.14 to .21, mandates the creation of a state-managed list of permissible vaping products. To be included in this directory, manufacturers of “nicotine vapor products” and “liquid nicotine” must submit annual certifications attesting that their products meet one of two criteria:
- They have received a marketing granted order from the U.S. Food and Drug Administration (FDA); OR
- They were marketed in the United States as of August 8, 2016, OR the manufacturer submitted a timely Premarket Tobacco Product Application (PMTA) to the FDA by September 9, 2020, and that application remains under review or is pending a final decision.
Notably, legal experts point out that Virginia’s second option appears slightly more permissive than similar laws in other states, using “or” rather than “and” for the marketing date and application submission. However, the consequence remains strict: beginning December 31, 2025, the sale, distribution, or importation for resale of any product not listed in this Attorney General’s directory will be prohibited.
The Plaintiffs’ Challenge
The lawsuit raises three primary arguments against this regime. First, plaintiffs contend the law is preempted by the Federal Food, Drug, and Cosmetic Act (FDCA). They argue Virginia is attempting to enforce federal premarket review provisions, a role Congress exclusively delegated to the FDA. Second, they claim the law violates the Virginia Constitution’s prohibition on “special laws,” alleging it effectively creates a monopoly for “Big Tobacco” companies that can afford the costly FDA authorization process. Third, they argue it violates the Equal Protection Clause of the U.S. Constitution by discriminating between large and small manufacturers without a rational basis.
In response, the state defendants have moved to dismiss, arguing the plaintiffs lack standing to sell unauthorized products and asserting the law is a valid exercise of police power to protect public health. The outcome may hinge on an upcoming Fourth Circuit Court of Appeals ruling regarding a similar North Carolina law, which would set a precedent for Virginia. A hearing on the preliminary injunction is set for December 18, 2025.
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