Pennsylvania’s new vaping law is an unconstitutional boon benefiting ‘Big Tobacco,’ lawsuit says
The state law aims to ensure that only e-cigarettes approved by the FDA are sold in Pennsylvania. That takes away a federal agency's enforcement discretion, lawsuit by Tobacco Hut shops' owners says.
A family-run business operating Tobacco Huts across Pennsylvania asked a federal judge to block part of a state law regulating e-cigarettes from taking effect next month, saying it would force them to destroy $2 million worth of inventory.
The lawsuit, filed Wednesday, challenges a 2025 Pennsylvania law that creates a registry of vape manufacturers whose product can be sold in the state, among other provisions. Similar laws were enacted in more than a dozen other states.
Part of the law went into effect in February, but the new litigation attempts to prevent the next round of changes that are scheduled for June, according to the complaint.
Far from a measure to protect youth, the Pennsylvania legislation mirrors an effort by Big Tobacco to bypass federal enforcement — or lack thereof — of vaping regulation, the suit claims.
The law requires e-cigarettes manufactures to certify they have obtained Food and Drug Administration approval, or that their application is pending. The FDA has been slow to grant approvals, and almost all authorizations went to products manufactured by four large companies, the suit says.
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The federal agency allowed unauthorized products to remain on the market because of fears that their removal would “results in users reverting to more harmful traditional cigarettes,” according to the complaint.
Pennsylvania’s law in essence takes away the FDA’s discretion over enforcement decisions by imposing state-level penalties on vape manufacturers and sellers without federal approval, the suit says. That makes it unconstitutional.
The Tobacco Hut owners filed the lawsuit and requested and injunction preventing the enforcement of the registration requirement. The four brothers, who aren’t named in the complaint, operate 33 smoke shops in the state, which include five in the Philadelphia area, as well as an e-cigarettes manufacturing arm, Nova Distro. 101 Distributors, a Harrisburg-based wholesaler to Tobacco Hut, joined the litigation. .
Tobacco Hut makes 60% of its net profits on vape sales that would be banned, the suit says. And if the law went into effect, it would allow the state to seize and destroy $2 million worth of inventory.
“Our hope is that the U.S. District Court for the Middle District of Pennsylvania will strike down this law — just as the federal courts in Iowa and Virginia did when faced with copycat legislation," Casey Coyle, an attorney representing the Tobacco Huts, said in a statement.
The suit names as defendants Attorney General David Sunday and Secretary of Revenue Patrick Browne.
“Attorney General Dave Sunday was proud to support this law during the legislative process to confront the growing threat that the sale of unregulated electronic nicotine devices poses to Pennsylvanians and especially our children,” the attorney general’s office said in a statement.
The revenue department declined to comment.
The law was championed by State Rep. Jeanne McNeill, a Democrat from Lehigh County, and passed with bipartisan support.
The vast majority of unauthorized vapes that are sold in Pennsylvania are manufactured in China and are marketed for youth, the bill’s co-sponsorship memo said.
“This legislation gives Pennsylvania the tools it needs to protect kids, support law-abiding retailers, and crack down on illegal vapor products that have flooded the market,” McNeill said in a statement after the bill passed in December. “Right now, there is no clear way for states to determine which products are legally authorized by the FDA. This bill closes that gap.”
