Federal Court Upholds Pennsylvania's Vape Directory Law, Rejecting Vape Companies' Preemption Challenge
A federal judge on Friday rejected a challenge by vape companies to Pennsylvania's e-cigarette directory law, ruling that the state's restrictions survive a preemption defense under federal tobacco law.
On Oct. 14, Judge Julia K. Munley of the U.S. District Court for the Middle District of Pennsylvania dismissed the case brought by MMA Group 1 Inc., which operates Tobacco Hut stores, and several other vape businesses against Attorney General Dave Sunday and Revenue Secretary Patrick Browne. The plaintiffs, who filed suit on May 20 and asked for a preliminary injunction the next day, lost on the merits: after an evidentiary hearing, the judge decided the preemption question by converting the request into a motion for summary judgment, granted it to the state and closed the case. The plaintiffs can still appeal to the Third Circuit.
The plaintiffs argued that Act 57 was a "backdoor" form of premarket review, an area the Family Smoking Prevention and Tobacco Control Act reserves to the FDA. The judge partly agreed: because eligibility for the directory depends on the FDA's premarket review, the law does fall within the TCA's preemption clause. But that clause is framed by two others. One preserves states' authority to adopt rules stricter than federal ones, including sales bans. The second, known as the savings clause, exempts from preemption any state requirement relating to the sale, distribution or possession of tobacco products. Because Act 57 attaches its prohibitions and penalties to the sale of unlisted products, the court ruled it is a sales ban that fits within the exception. The judge acknowledged the plaintiffs' criticisms of the reasoning used by other courts were "well taken," but reached the same conclusion from the text of the TCA.
The court also rejected the argument that only the federal government can enforce the Food, Drug and Cosmetic Act. To enforce Act 57, the state only has to show that an unlisted product was sold or offered for sale, not that federal law was violated. A manufacturer can be excluded from the directory for purely state-law reasons, such as failing to pay fees or post a bond, while remaining federally compliant.
According to the court's summary of the record, the plaintiffs make, distribute and sell e-cigarettes that have neither an FDA marketing order nor a pending application. Tobacco Hut employs 150 to 180 full-time staff and draws 60% of its profits from e-cigarettes. As of June 2, it held $2 million in products subject to seizure under Act 57, and its stores sell 200 to 300 different unauthorized vapes, including the "Hut Bar," made by co-plaintiff Nova Distro.
Under Act 57, signed into law in December 2025, nicotine e-cigarettes can only be sold if they appear in a directory kept by the Attorney General. Manufacturers must certify each product annually, under penalty of perjury, and show it meets one of three conditions, including a timely-filed premarket application; they must also post a surety bond of at least $50,000 and pay prescribed fees per brand family and brand style. The directory was first posted in June with no products listed, and the Attorney General's website still lists 22 manufacturer certifications as under review.
Retailers and wholesalers had 120 days after the directory's publication to sell off or remove unlisted products. From Oct. 19, those products become contraband and can be seized and destroyed at the holder's expense, with fines calculated per individual unit. Manufacturers whose unlisted products are sold in the state face $1,000 per product. Consumers who made a bona fide purchase are exempt from both seizure and penalties.
In an Oct. 8 statement, Attorney General Sunday said the law aims at "keeping harmful products out of the hands of both children and adults," and his office plans targeted enforcement with compliance education during inspections. The ruling follows appellate decisions in Wisconsin, Iowa and North Carolina that rejected the same preemption arguments; the memorandum notes that at least 16 states now have some form of e-cigarette directory law.