Key Points
- Virginia asks the court to dismiss the lawsuit entirely.
- State argues plaintiffs have no legal right to sell unapproved vape products.
- Plaintiffs allege Big Tobacco influenced the law; state denies it.
- Virginia says the ban falls within its public health authority and is not preempted.
- State officials invoke sovereign immunity.
2Firsts, November 20, 2025 — According to Law360, Virginia Attorney General Jason Miyares and Tax Commissioner James J. Alex have urged a federal judge to dismiss a lawsuit challenging the state’s ban on flavored e-cigarettes that lack federal authorization.
The officials argue that plaintiffs Nova Distro Inc. and Tobacco Hut and Vape Fairfax Inc. lack standing because they have no recognized right to sell products already illegal under federal law. Since unapproved e-cigarette products cannot be sold under the Federal Food, Drug, and Cosmetic Act (FDCA), the state maintains that the plaintiffs’ request for relief is not legally cognizable.
“Plaintiffs essentially complain that the Virginia statute makes it harder for them to continue to violate federal law,” the state defendants wrote.
The plaintiffs filed suit last month, arguing that Virginia’s flavored vape ban is preempted by federal law and influenced by lobbying from Big Tobacco intended to disadvantage smaller retailers.
The state counters that:
- The ban is neither in conflict with nor preempted by the FDCA or the Tobacco Act.
- States retain broad authority to regulate the sale of tobacco products.
- Congress did not intend to prevent states from prohibiting sales of unapproved e-cigarettes.
- The ban aligns with federal objectives because it reinforces the rule that only approved products may be sold.
State defendants also assert sovereign immunity, arguing they cannot be sued for alleged violations of the Virginia constitution, nor have plaintiffs shown ongoing violations of federal law that would trigger an exception.
They further contend that the court should dismiss state-law claims because federal courts should avoid deciding novel or complex state constitutional questions.
The equal-protection claim, they argue, also fails:
- Small vape companies are not a protected class.
- The ban applies uniformly.
- The state has a legitimate public health interest in restricting flavored vapes.
The suit, NOVA Distro Inc. et al. v. Virginia Attorney General Jason Miyares et al., case number 3:25-cv-00857, is before the U.S. District Court for the Eastern District of Virginia.
Image source: Law360
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