Equal Protection Clause-Balance of Equities-Tobacco Product Sales

Listen to this article

7^th Circuit Court of Appeals

Case Name: Wisconsinites for Alternatives to Smoking v. David Casey

Case No.: 25-2565

Officials: Brennan, Chief Judge, and Lee and Kolar, Circuit

Judges.

Focus: Equal Protection Clause-Balance of Equities-Tobacco Product Sales

In 2023, Wisconsin enacted a law requiring that electronic nicotine delivery systems, such as vapes and e-cigarettes, may be sold in the state only if they have received premarket authorization from the Food and Drug Administration (FDA), were under FDA review by certain specified dates, or do not contain nicotine. The statute also imposes financial penalties and allows private parties to bring lawsuits against violators. Businesses and consumers involved in producing, distributing, selling, and using these products challenged the law, arguing that it is preempted by federal statutes governing tobacco regulation. They also claimed it violated the Equal Protection Clause and sought both preliminary and permanent injunctions to block its enforcement.

The Western District of Wisconsin denied the request for a preliminary injunction. It determined that the law was not preempted by federal legislation, including the Federal Food, Drug, and Cosmetic Act (FDCA) and the Family Smoking Prevention and Tobacco Control Act (TCA). The court concluded that Congress did not intend to bar states from adopting additional or stricter regulations on tobacco product sales. It also found that the plaintiffs failed to demonstrate a likelihood of success on the merits or that the balance of equities supported granting an injunction.

The Seventh Circuit found that the language and structure of the relevant federal statutes, particularly the TCA’s preservation and savings clauses, indicate that Congress left room for states to regulate or even ban the sale of tobacco products. As a result, the court concluded that the plaintiffs had not shown a reasonable likelihood of success on their preemption claim.

Affirmed.

Decided 04/21/26

Full Text