Ohio Supreme Court takes up appeal that could define state limits on illegal vape sales enforcement

Key Takeaways

• The Ohio Supreme Court accepted an appeal filed by Attorney General Dave Yost over three vape retailer lawsuits
• Lower courts dismissed the cases on federal preemption grounds, citing federal authority over marketing and sale of vaping products
• The suits involve retailers in Orrville, Delaware and Cincinnati
• Ohio alleges deceptive practices tied to sales of flavored e-cigarettes lacking required FDA authorization and inadequate disclosure to consumers
• A state appellate court said enforcement of the federal Food, Drug and Cosmetic Act rests exclusively with the federal government

2Firsts, March 6, 2026

According to NBC4, the Ohio Supreme Court has agreed to take up a dispute that could shape how far state officials can go in efforts to curb the sale of illegal e-cigarettes.

In an order issued Feb. 17, the court accepted an appeal from Ohio Attorney General Dave Yost, who is asking the justices to reinstate lawsuits he filed against three vape retailers. Lower courts dismissed the cases, concluding that federal law governs whether vaping products may be marketed and sold.

At issue is whether Ohio can use its Consumer Sales Practices Act to target retailers that sell flavored e-cigarettes lacking federal authorization. Yost initiated the effort in July 2024, filing complaints against shops in Orrville, Delaware and Cincinnati. 

His office alleged the businesses engaged in deceptive practices by offering flavored vape products that had not received required clearance from federal regulators and by failing to inform customers of that status.

Federal law requires manufacturers of new tobacco products, including e-cigarettes, to obtain premarket authorization from the U.S. Food and Drug Administration (FDA) before selling them in the United States. The report notes the FDA has authorized only a limited number of vaping products, all in tobacco or menthol flavors.

The Fifth District Court of Appeals ruled that Ohio’s claims were blocked under federal preemption principles, stating that enforcement of the federal Food, Drug and Cosmetic Act rests exclusively with the federal government.

Yost has maintained that his office is not attempting to enforce federal law itself. Instead, he argues the state is applying its own consumer protection law to businesses that allegedly misled customers by selling products that cannot legally be marketed.

Image Source: NBC4