Virginia Appeals Federal Ruling Blocking Flavored Vape Ban
The Attorney General of Virginia has appealed to the U.S. Court of Appeals for the Fourth Circuit, seeking to overturn a federal district court ruling that certain provisions of the state’s flavored vape ban are preempted by federal law. Previously, a federal judge issued a preliminary injunction in December 2025, suspending enforcement of the new state law. Meaning relevant businesses are not required to remove unapproved flavored vape products from their shelves pending a final judgment.
Key Points at a Glance
- Appellant: State of Virginia (appeal filed by the State Attorney General’s office).
- Appellate Court: U.S. Court of Appeals for the Fourth Circuit.
- Disputed State Law: Virginia Code Chapter 23.2, concerning the flavored vape ban.
- Key Ruling: A federal judge ruled that the state law is preempted by the FDCA and the Tobacco Control Act; also disallowed plaintiffs from pursuing state constitutional and equal protection claims.
- Case Status: Businesses are temporarily not required to remove unapproved flavored vapes pending a final ruling.
Appeal Filed with the Fourth Circuit
January 12, 2026 — According to Law360, the Attorney General of Virginia is asking the U.S. Court of Appeals for the Fourth Circuit to overturn a ruling that partially blocked the state from enforcing its flavored vape ban.
According to the notice filed by the Attorney General, Virginia has informed U.S. District Judge David J. Novak of the Eastern District of Virginia that the state seeks to overturn his finding that Chapter 23.2 of the Virginia Code is preempted by the Food, Drug, and Cosmetic Act (FDCA) and the Family Smoking Prevention and Tobacco Control Act.
Background of the Legal Challenge
This case is one of several lawsuits across the country seeking to block state-level vape bans. The plaintiffs allege that large tobacco companies are the driving force behind the Virginia legislation and that the law is designed to squeeze smaller tobacco companies out of the market.
District Court’s December 2025 Ruling
In a ruling issued in December 2025. Judge Novak determined that the plaintiffs—Nova Distro Inc., Tobacco Hut, and Vape Fairfax Inc. could not proceed with claims that the state law violated the Virginia Constitution or the Equal Protection Clause.
However, the judge also ruled that the flavored vape ban was ultimately preempted by federal law. He found that while the FDCA allows states to enact vape regulations that are “in addition to or stricter than” federal law, it does not permit states to enact regulations that are effectively “identical” to federal requirements.
Origins of the Disputed State Law
The case stems from a new law passed by Virginia Chapter 23.2 of the Virginia Code. It was scheduled to take full effect on December 31, 2025.
Local small businesses. Including NOVA Distro Inc., filed suit against the state, alleging that the law was unconstitutional and overstepped state authority by interfering with federal FDA regulatory power, effectively creating a monopoly for major tobacco companies.
Preliminary Injunction Halts Enforcement
On December 18, 2025. The federal judge issued a preliminary injunction, adopting portions of the plaintiffs’ arguments and formally suspending enforcement of the law.
Impact on Businesses Pending Final Judgment
Under U.S. legal principles, businesses are temporarily not required to remove flavored vape products that lack FDA authorization while the case remains pending and until a final ruling is issued.
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