Virginia Appeals To Resume Enforcement of Flavored Vape Ban

The Attorney General of Virginia has appealed to the United States Court of Appeals for the Fourth Circuit, seeking to overturn the federal district court’s determination that certain provisions of the state’s flavored vape ban were “pre excluded” by federal law. Previously, a federal judge issued a preliminary injunction in December 2025, suspending the implementation of the new law in the state. Until the final judgment of the case, relevant merchants are not required to remove flavored vape products that have not been approved by the FDA under the state law.

Virginia appeals fourth circuit court strives to resume enforcement of flavored vape ban

Quick overview of key points
• Appellant: Virginia, USA (Notice of Appeal Submitted by the State Attorney General’s Office)
• Court of Appeals: United States Court of Appeals for the Fourth Circuit
• Controversial state law: Chapter 23.2 of the Virginia state law, which pertains to the ban on flavored electronic cigarettes
• Key ruling: Federal judge finds state law preempted by FDCA and Tobacco Control Act; At the same time, the plaintiff is not allowed to continue advancing claims related to the state constitution and equal protection
• Case progress: Until the final verdict of the case, the merchant does not need to temporarily remove flavored vapes that have not been approved by the FDA

According to Law360, the Attorney General of Virginia is requesting the Fourth Circuit Court of Appeals to overturn a ruling that partially prevented the state from enforcing a ban on flavored vapes.

According to a notice submitted by the state attorney general, Virginia has informed Judge David J. Novak of the United States District Court for the Eastern District of Virginia. The state is seeking to overturn its assertion that Chapter 23.2 of the state law was preempted by the Food Drug and Cosmetic Act (FDCA) and the Family Smoking Prevention and Tobacco Control Act.

Reference: Virginia Takes Vape Law Fight To 4th Circ. – Law360

The trigger for the case was the passage of a new law (Chapter 23.2 of the Virginia Code) in Virginia, which is scheduled to take full effect on December 31, 2025. But local small and medium-sized enterprises such as NOVA Distro Inc. have jointly sued the state government, accusing the state’s laws of being unconstitutional, arguing that it has interfered with the federal (FDA) regulatory authority beyond its authority, and essentially created a monopoly for tobacco giants.
A federal judge issued a preliminary injunction on December 18, 2025, adopting some of the plaintiff’s arguments and formally suspending the enforcement of the law.
According to US legal principles, merchants do not need to temporarily remove flavored vapes that have not been approved by the FDA until the final verdict of the case.

This is one of several lawsuits in the United States attempting to block state level vape bans. The plaintiffs in this case claim that Big Tobacco is the driving force behind Virginia’s relevant legislation and are trying to squeeze out “small tobacco” companies.

The state law was ultimately preemptively excluded by federal law, one reason being that the FDCA allows states to establish “additional or stricter” provisions on vape sales than federal law, but does not allow states to establish “identical” provisions.