Key Takeaways
• Appellant: the Commonwealth of Virginia (notice filed by the attorney general)
• Court: U.S. Court of Appeals for the Fourth Circuit
• Statute: Virginia Chapter 23.2 flavored-vape restrictions
• District ruling: state-constitution and equal-protection claims blocked; statute found preempted by FDCA and Tobacco Control Act
• Case: NOVA Distro Inc. et al. v. Miyares et al., No. 3:25-cv-00857, E.D. Va.
2Firsts, January 12, 2026 – According to Law360, Virginia is asking the Fourth Circuit to overturn a court order that partially blocked the state from enforcing a ban on flavored vapes. The commonwealth notified U.S. District Judge David J. Novak that it seeks to upend his December order finding Virginia’s Chapter 23.2 statute preempted by the Food, Drug and Cosmetic Act and the Family Smoking Prevention and Tobacco Control Act.
The report says the suit is one of many nationwide seeking to stop state-issued vape bans, and notes the complaint’s framing that the prohibitions help “Big Tobacco,” with allegations that large tobacco companies drove the Virginia law to push out smaller companies.
Novak’s order said plaintiffs Nova Distro Inc. and Tobacco Hut and Vape Fairfax Inc. could not proceed with claims that the law violated the Virginia constitution or the Equal Protection Clause. The judge did find the law was ultimately preempted, stating that the FDCA allows states to regulate vape sales in ways “in addition to, or more stringent than,” federal law, but does not allow states to make identical regulations.
The case is NOVA Distro Inc. et al. v. Miyares et al., No. 3:25-cv-00857, in the U.S. District Court for the Eastern District of Virginia.
Image source: Law360
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