Federal judge upholds Wisconsin vape sales ban

A Wisconsin law restricting the sale of some vape products in the state remains in effect after federal judge denied a trade organization’s request for a preliminary injunction to block enforcement.

This summer, Wisconsinites for Alternatives to Smoking and Tobacco, or WiscoFAST, filed suit against the state Department of Revenue to block the state from enforcing a law passed in 2023 that bans the sale of e-cigarettes and vaping products that have not received marketing authorization by the U.S. Food and Drug Administration.

The suit argued that only the federal government has the authority to enforce FDA policy.

The law took effect on Sept. 1, meaning retailers are now limited to the 39 products currently approved by the FDA. Stores that sell non-approved items could face a fine of $1,000 per day per product. A similar ban on hemp-based vape products, such as delta THC devices, is expected to take effect next year, according to the Department of Revenue website.

In a court order on Friday, Western District of Wisconsin Judge William Conley wrote that preventing the state from enforcing the law would not serve the public interest or prevent harm. Conley also wrote that WiscoFAST and other plaintiffs “failed to demonstrate a reasonable likelihood of success” in the suit.

“Plaintiffs’ unexplained delay in bringing suit until just before the statute takes effect offsets the arguably limited harm in further extending enforcement for a few more months given the state’s repeated extensions of the date enforcement would begin,” the order reads.

But Tyler Hall, president of WiscoFAST, said in a statement that the decision “forces thousands of retailers across the state to remove products that adult consumers rely on.”

“We are disheartened by Judge Conley’s ruling, which we believe does not fully recognize the preemption authority of the FDA under federal law,” Hall stated.

WiscoFAST filed a notice that it would appeal the order to the U.S. Court of Appeals for the 7th Circuit, seeking a preliminary injunction to block enforcement of the vape ban.

Hall also said the organization’s “fight is far from over” and WiscoFAST believes a higher court will see the merits of the case.

“We will continue to pursue every available legal avenue to protect consumer choice and the livelihoods of thousands of Wisconsin workers,” he stated. “This is a matter of federal authority, public health and economic survival for our members.”