We recently covered this case here, in which a small manufacturer and retailer sued the Virginia attorney general (AG) and tax commissioner in the U.S. District Court for the Eastern District of Virginia, seeking to enjoin enforcement of the vapor product directory law. See Nova Distro, Inc., et al. v. Miyares et al., No. 3:25-cv-857 (E.D.V.A.). There, we also noted another ongoing case challenging a similar law in North Carolina, for which oral argument is scheduled before the U.S. Court of Appeals for the Fourth Circuit on January 29, 2026. See Vapor Technology Association, et al. v. Wooten et al., No. 25-1745 (4th Cir.).

On December 18, the district court granted the Virginia plaintiffs’ motion for a preliminary injunction and enjoined the AG and tax commissioner from enforcing the vapor product directory, finding that the state law’s enforcement provisions are preempted by federal law. The preliminary injunction stands until the Fourth Circuit renders a decision regarding preemption in Wooten, at which point the parties in Nova Distro may move for further hearing and briefing on the preemption issue.

Finding of Preemption

The district court granted in part the plaintiffs’ motion for a preliminary injunction, finding that the plaintiffs were likely to succeed on their argument that the enforcement provisions of Virginia’s directory law are preempted under the Federal Food, Drug, and Cosmetic Act (FDCA) as an improper attempt to usurp the U.S. Food and Drug Administration’s (FDA) enforcement role.

The court found that the enforcement-related provisions of Virginia’s directory framework, Va. Code Ann. §§ 59.1-293.17(D), 59.1-293.20(A)–(D), effectively authorize enforcement actions against manufacturers and retailers “based on whether a product has received FDA premarket authorization, thereby creating a state enforcement regime that directly conflicts with the exclusive enforcement power vested in the FDA by Congress under [21 U.S.C.] § 337(a).” The state law provisions, the court said, “stand as an obstacle to the fulfillment of federal law and are thus preempted under the FDCA’s clear reservation of enforcement authority to the federal government.”

Further, “[b]y specifically incorporating [federal premarket review requirements] as the precondition for determining what products can be sold, any proceeding against a vape manufacturer under Virginia’s [vapor product directory] enforcement provisions would exist ‘solely by virtue’ of that manufacturer’s violation of the FDCA …. [and] such state law claims stand preempted by the FDCA and the federal government’s exclusive enforcement authority ….”

Nevertheless, the court did not agree with plaintiffs’ contention that certain other provisions of the directory framework are preempted. Specifically, the court found that state law provisions which do not turn on federal authorization status are not preempted. These include restrictions on the conditions of sale through registration, certification, recordkeeping, inspection, and information reporting — none of which prohibit sales based on federal authorization status. See Va. Code Ann. §§ 59.1-293.14–16, 59.1-293.19(A). These provisions, the court said, “govern who may sell tobacco products, and under what administrative conditions, but they do not prescribe product composition, manufacturing processes, labeling standards or scientific criteria for product approval.”

Dismissal of Other Counts

The district court also dismissed with prejudice the plaintiffs’ two other legal arguments against Virginia’s directory law under the Virginia Constitution’s prohibition on the enactment of “special laws” and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

This leaves only the argument regarding FDCA preemption at issue in the litigation. As evidenced by the granting of the preliminary injunction, the district court is inclined to agree with the plaintiffs that Virginia’s vapor product directory is unconstitutional under preemption principles.

Why It Matters

The district court’s granting of a preliminary injunction has the immediate impact of preventing the Commonwealth from enforcing Va. Code Ann. §§ 59.1-293.17(D) and 59.1-293.20(A)–(D). While this order is in effect, the Commonwealth may not enforce the provisions of the directory law prohibiting the sale, distribution, and importation of liquid nicotine and nicotine vapor products not included on the directory as of December 31, 2025, or subsequently removed from the directory. The court’s order further specifies that the injunction additionally covers “any enforcement actions predicated on those provisions, to include such enforcement actions under §§ 59.1-293.16 [which requires manufacturers to submit certifications to be included on the directory] and 59.1-293.21 [which authorizes enforcement actions and inspections].”

Consequently, although the directory law’s provisions requiring manufacturers to submit certifications remains in effect, the court’s order enjoins the AG and tax commissioner from bringing enforcement actions against manufacturers for failing to certify and subsequently selling their products in Virginia. Additionally, the court’s order enjoins enforcement actions against others in the supply chain — such as distributors and retailers — with respect to dealing in unlisted products.

More broadly, the Fourth Circuit’s forthcoming resolution of a similar preemption argument in Wooten will now directly impact the litigation with respect to both North Carolina’s and Virginia’s directory regimes. Oral argument in Wooten is scheduled for January 29, 2026.