Smoke Shops Challenge Wisconsin Vape Ban in Federal Court

A trade group representing Wisconsin smoke shops and vape users has taken its fight against the state’s new electronic cigarette ban to the Seventh Circuit Court of Appeals. The group, Wisconsinites for Alternatives to Smoking and Tobacco Inc., argues that the Wisconsin law, which effectively bans vapes not listed on a state directory, is preempted by federal law. The law, which went into effect on September 1, 2025, requires vape manufacturers to be in partial or full compliance with the FDA’s premarket authorization requirements to be legally sold in the state.

During oral arguments on Wednesday, attorney James Fraser, representing the trade group, contended that a lower court erred in dismissing their complaint. He argued that the state statute impermissibly interferes with the federal regulatory scheme established by the Food, Drug, and Cosmetic Act (FDCA). Fraser maintained that while many products on the market may technically violate the FDCA, the FDA has exercised enforcement discretion, not requiring the removal of all unauthorized products. He suggested that state-level enforcement disrupts this balance.

However, the three-judge panel appeared skeptical of the preemption argument. U.S. Circuit Judge John Lee questioned how the Wisconsin law could preempt federal law if it essentially mirrors the same standards. “The preemption clause prohibits a state… from establishing a requirement that is different from or in addition to,” Lee noted, observing that the Wisconsin law seems “identical” to existing federal requirements. He suggested that concurrent jurisdiction to enforce the same standard might not raise preemption concerns.

Charlotte Gibson, representing the state of Wisconsin, argued that the products in question are “flat out illegal under federal law,” regardless of the FDA’s enforcement discretion. She asserted that the trade group’s argument misrepresents the factual basis, as the FDA does not want these unauthorized products sold. The panel, which included Judges Michael Brennan and Joshua Kolar, did not indicate when a ruling would be issued.

• News source: Smoke shops challenge Wisconsin’s vape ban at Seventh Circuit

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Matthew Ma

Marketing at Ecigator

With over a decade of experience in the e-cigarette industry, Matthew Ma is a seasoned expert in both the manufacturing and usage aspects of vaping products. His extensive background has provided him with a deep understanding of the intricacies and evolving dynamics of e-cigarettes.

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