On October 8, Pennsylvania Attorney General Dave Sunday announced that his office may begin enforcing the Commonwealth’s new electronic nicotine delivery system (ENDS) directory starting October 19. Pursuant to Pennsylvania’s Act 57 (72 P.S. § 206-1), importers, wholesalers, and retailers may face civil penalties for selling electronic cigarettes not listed in the state’s ENDS directory, and unlisted products may be seized, forfeited, and destroyed.

The Attorney General plans targeted enforcement across Pennsylvania. Inspectors will provide compliance guidance, and penalties will increase for repeat violations.

What Does Act 57 Say?

Act 57 requires the Attorney General to maintain a public directory of nicotine-containing electronic cigarettes approved for sale in Pennsylvania. Manufacturers must certify each year that their products meet the law’s requirements, including criteria tied to the U.S. Food and Drug Administration’s premarket review process.

Eligibility alone does not secure a listing. Manufacturers must post a surety bond of at least $50,000 and pay initial fees of $2,000 per brand family and $200 per brand style. Annual fees are $1,000 per brand family and $100 per brand style. Manufacturers outside Pennsylvania also must appoint an in-state agent for process service. Offshore manufacturers must identify their U.S. importers, which are jointly liable for penalties.

Which ENDS Can Be Sold in Pennsylvania?

An ENDS product may be sold in Pennsylvania only if it has FDA marketing authorization or meets Act 57’s criteria for products in the federal premarket tobacco product application (PMTA) process.

Act 57 also addresses non-nicotine electronic cigarettes sold under the same brand name as an ENDS product. Unless the product is a part or component included in the related federal PMTA, the manufacturer must certify that it contains no nicotine and submit packaging images and a signed test from a certified domestic laboratory.

Is Pennsylvania an Outlier or Part of a Movement?

Pennsylvania is part of a broader state movement to regulate electronic cigarettes through product directories, licensing, and sales restrictions. To date, approximately 18 states have adopted ENDS directory laws or similar provisions and many more are considering similar legislation, and as our team has discussed, most of these laws have so far survived legal challenges.

Many directory laws follow a similar pattern. Manufacturers certify each year that a product either (1) has an FDA marketing granted order, or (2) was on the market as of August 8, 2016, and has a PMTA filed by September 9, 2020, that is still pending or whose denial was stayed or vacated in order to be listed on the directory and sold in the state.

That second option tracks FDA’s original 2020 enforcement discretion policy. In other words, many states wrote FDA’s enforcement priorities into state law as a condition of sale. For example, Wisconsin’s directory law requires the manufacturer to certify either (1) that the product has received a marketing granted order or (2) was on the U.S. market as of August 8, 2016, the manufacturer submitted a premarket tobacco product application to FDA by September 9, 2020, and the application remains under FDA review or a final decision on the application has not otherwise taken effect. Wis. Stat. § 995.15.

Notably, the FDA’s 2020 enforcement discretion policy has now been superseded by a new May 2026 policy, which allows certain ENDS products that have reached the filing review stage to be sold pending FDA’s review.

Some directory laws have been updated to account for this change. North Carolina, for example, amended its directory law to cover products with pending premarket tobacco product applications that are marketed under a published FDA enforcement policy. This broader standard accounts for the May 2026 policy and future changes. N.C. Gen. Stat. § 143-245.11.

That means a product may be permitted to remain on the market under FDA policy but still be ineligible for sale in states with narrower directory laws.

In addition, some states combine directory requirements with flavor bans or nicotine caps. California bans flavored tobacco products, including ENDS, and limits its Unflavored Tobacco List to products certified as unflavored. Cal. Health & Safety Code §104559.1. In Utah, the definition of a “premarket authorized or pending electronic cigarette product” eligible for listing on the state registry does not include products that exceed 4.0% nicotine by weight per container or a nicotine concentration of 40 mg/mL. Utah Code § 76-9-1101(18). And Alabama prohibits the addition of ENDS products that are not made, packaged, labeled, and manufactured in the United States, unless they have a marketing granted order. Ala. Code § 28-11-17.2(b).

State regimes can also interact. Pennsylvania may deny certification to a manufacturer finally denied listing in, or involuntarily removed from, another state’s comparable directory. 72 P.S. § 206-I(j)(2).

Manufacturers will need to closely analyze the relevant state laws to determine whether their ENDS products are eligible for listing.

What Happens if a Product Is Not Listed?

Beginning October 19, nicotine-containing electronic cigarettes intended for retail sale in Pennsylvania are contraband if they are not listed in the directory. They may be seized, forfeited, and destroyed.

Businesses whose products are confiscated must pay the destruction costs, which may exceed the civil penalty.

Products purchased in good faith by consumers are not subject to seizure.

The Attorney General and Department of Revenue may conduct unannounced inspections of businesses that store or sell covered products. Inspectors may review inventory, invoices, books, and other records.

Selling or offering an unlisted product carries a civil penalty of up to $500 for each electronic cigarette.

The Attorney General must maintain a public noncompliance database of manufacturers, importers, wholesalers, and retailers with at least three violations in the preceding 12 months. Buying from or selling to a listed business carries an additional penalty of up to $500 per product.

Violations also constitute unfair or deceptive practices under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law.

What Should Businesses Do Before October 19?

Before October 19, manufacturers, distributors, and retailers selling in the Commonwealth should confirm that every covered product they sell appears in Pennsylvania’s ENDS directory. They should check regularly because listings may change.

Manufacturers must report material changes to their certifications, such as changes to a product’s FDA premarket review status. The Attorney General must update the directory at least monthly. Businesses should have procedures to remove, sell through, or return products that lose their listings.

Why It Matters

FDA status alone does not establish compliance in Pennsylvania or other states with directory laws. Manufacturers must meet each state’s certification and listing requirements, and sellers must confirm that covered products remain listed. Beginning October 19, unlisted products in Pennsylvania may become contraband and expose businesses to seizure, destruction costs, civil penalties, and greater sanctions for repeat violations.

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Troutman Pepper Locke State Attorneys General Team

	Ashley Taylor – Co-leader and Firm Vice Chair Ashley is co-leader of the firm’s nationally ranked State Attorneys General practice, vice chair of the firm, and a partner in its Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. He helps his clients navigate the complexities involved with multistate attorneys general investigations and enforcement actions, federal agency actions, and accompanying litigation.
	Clay Friedman – Co-leader Clay co-leads the firm’s State Attorneys General practice and is nationally ranked by Chambers USA for AG Government Relations and in Best Lawyers for Advertising Law. He has dedicated his entire career to state attorney general and federal work, serving for nearly a decade in a senior role and more than 25+ years in private practice. Clay focuses his practice on helping industry-leading companies mitigate the risks associated with state and federal regulatory investigations and associated litigation.
	Chris Carlson Chris advises clients on regulatory, civil, and criminal investigations and litigation. With a background as an assistant attorney general, he provides practical guidance to clients with matters involving state attorneys general and federal regulatory agencies.
	Lauren Fincher Lauren has vast experience handling state attorneys general investigations, navigating complex regulatory compliance matters, and providing strategic counsel in enforcement actions across various industries. She helps clients manage high-stakes regulatory matters and guides them through complex legal landscapes.
	Stephen Piepgrass Stephen leads the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, representing clients in single and multistate enforcement actions, including inquiries and investigations involving state attorneys general and other state and federal governmental enforcement bodies including the CFPB and FTC. He regularly represents clients in highly regulated sectors such as financial services, emerging technologies, health care, insurance, and education.
	Michael Yaghi Mike handles high-profile investigations led by state attorneys general, the FTC, and other federal and state regulatory bodies. He assists clients through these complex government inquiries, assisting them throughout the entire life cycle of investigations, from regulatory enforcement through formal litigation.
	Matthew J. Berns Drawing on his experience in senior leadership roles in the New Jersey Attorney General’s and Governor’s Offices and as a trial attorney for the U.S. Department of Justice, Matt provides an insider’s perspective when guiding clients through complex government investigations, litigation, and other actions.
	Jeff Johnson Jeff helps clients navigate complex regulatory and litigation challenges with local, state, and federal authorities. His clients benefit from his decade of broad litigation experience, understanding of emerging state and federal regulatory issues, and strong relationships with attorneys general across the U.S. In addition to handling cases from trial through state or federal appeals, Jeff serves as amicus counsel in advancing legal rules to support his clients’ vital interests.
	Jay Myers Jay assists clients in heavily regulated industries, including health care, energy, insurance, emerging industries, and data privacy. He provides both regulatory legal advice and government relations strategies. Jay’s past and current clients include Fortune 10 companies, startups, nonprofits, industry associations, and advocacy groups. Recognizing that state government matters are often complex and multifaceted, he utilizes regulatory guidance, government advocacy, or both in tandem to deliver tailored solutions for each client’s unique needs.
	Zoe Schloss Zoe represents clients in litigation and government investigations. As former deputy attorney general for the Delaware Department of Justice, she is an experienced litigator who understands the enforcement priorities that impact her clients. Zoe works with individuals and corporate entities in highly regulated industries, including financial services, health care, and energy.
	Jessica Birdsong Jessica is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement Practice Group. She received her J.D. from the University of Richmond School of Law, magna cum laude, where she served as associate articles editor of the Journal of Law & Technology.
	Sydney Goldberg Sydney is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. She advises clients on regulatory compliance and state attorney general (AG) investigations in highly regulated industries, including health care and life sciences. She routinely helps clients navigate alcohol compliance and licensing issues, helping proactively manage regulatory risk.
	Troy Homesley Troy is an accomplished litigator who has represented and defended clients across a wide range of complex, high-stakes disputes at both the trial and appellate levels. He has represented technology companies, business executives, law firms, investment funds, high-ranking federal officials, international non-profits, and asylum seekers. Troy draws on his broad litigation experience to advise clients before litigation arises, while claims are pending or threatened, and leading up to and through trial and appeals.
	Namrata Kang Namrata (Nam) is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, based in the Washington, D.C. office. She routinely advises clients on a wide variety of state and federal regulatory matters, with a particular emphasis on state consumer protection laws relating to consumer financial services and marketing and advertising. Nam’s experience transcends multiple industries, including financial services, telecommunications, media, and sports betting.
	Michael Lafleur Michael is an associate in the firm’s Regulatory Investigations, Strategy, and Enforcement Practice Group. Based out of the firm’s Boston office, Mike has deep experience in litigation, investigations, and other regulatory matters involving state-level regulators and state attorneys general.
	William LaRosa Bill represents clients in complex regulatory investigations, state attorneys general matters, and enforcement proceedings. He draws on his experience as a former assistant U.S. attorney and as a private-sector litigator advising corporations in high-stakes litigation and regulatory investigations, including multistate AG investigations.
	Lane Page Lane represents financial institutions and other clients in federal and state regulatory investigations and complex civil litigation. He is particularly focused on consumer protection and fair lending issues.
	Dascher Pasco Dascher provides strategic counsel and representation to clients navigating regulatory compliance, enforcement, and high-stakes litigation. She regularly represents clients in both single and multistate state attorney general (AG) investigations and enforcement actions, as well as before other state enforcement bodies and local government agencies.
	Kyara Rivera Rivera Kyara is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement Practice Group. She received her J.D. from the University of Richmond School of Law, cum laude, where she served as publications and online editor of the Public Interest Law Review.
	Timothy Shyu Timothy advises clients on regulatory compliance and enforcement in highly regulated industries, including health care and life sciences, data privacy and cybersecurity, and emerging technology. He assists companies in navigating complex investigations and enforcement actions, helping them mitigate regulatory risk proactively.
	Trey Smith Trey focuses his practice on representing and advising regulated utilities before state public utility commissions. He routinely helps clients obtain certificates of public convenience and necessity for transmission infrastructure. In this role, Trey works with his clients’ subject-matter experts to manage administrative proceedings, including by preparing initial filings; responding to discovery requests; drafting rebuttal testimony; and litigating any disputed issues.
	Daniel Waltz Dan helps clients navigate all aspects highly regulated relationships between industry participants and federal, state and local governments. Whether engaging with regulators, negotiating transactions or representing clients in the courtroom, he delivers solutions that help his clients achieve their strategic goals.
	Stephanie Kozol Stephanie is Troutman Pepper Locke’s senior government relations manager in the state attorneys general department.