State postpones enforcement of Iowa vape registry law in response to lawsuit

State officials have agreed to postpone enforcement a new Iowa law that would restrict vape sales in the state in response to a lawsuit claiming it is unconstitutional.

A group of Iowa retailers, distributors and e-cigarette manufacturers are suing to block enforcement of a new Iowa law they say would severely restrict vape sales, to the benefit of Big Tobacco.

Iowa lawmakers last spring passed and Gov. Reynolds signed into law House File 2677, creating a registry of approved vaping products vetted by the U.S. Food and Drug Administration.

Under the law, retailers could sell only products listed on the state-approved registry — which would be limited to those the FDA has approved for sale, or those whose application is pending review by the FDA or whose denial is being appealed.

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The Iowa Department of Revenue on Friday announced publication and enforcement of Iowa’s vapor products directory has been delayed until further notice. During the delay, manufacturers should continue to submit certification applications online through GovConnectIowa, according to the department.

The state was scheduled to publish its vapor products directory on Thursday, with enforcement to begin Feb. 3, according to court documents.

Attorneys for the state filed a request Dec. 26 seeking additional time to respond to the lawsuit and plaintiffs’ request for a preliminary injunction enjoining enforcement of the new law due to "several complex questions of law" raised in the lawsuit, a heavy trial caseload, planned holiday and paternity leave and other conflicts.

Under court rules, the state would have until Thursday — 14 days from when the motion for preliminary injunction was filed Dec. 17 — to respond to the lawsuit.

Instead, the Iowa Department of Revenue has agreed to postpone enforcement of the new law until the court has ruled on the injunction request and any subsequent request to stay the law on appeal. The department, though, will continue preparing the registry of vaping products approved for sale while the case is pending, court documents state.

Both sides now have weeks to file written arguments. A hearing on the request for an injunctions is scheduled for March 5 in Des Moines.

The lawsuit asserts the new regulations would force many retailers to shut down or incur substantial penalties “because they cannot maintain a profitable business with the limited range of vapor products eligible for listing on the registry.”

Attorneys for the group of retailers, distributors and e-cigarette manufacturers claim the law violates the U.S. Constitution because Congress gave the FDA the exclusive authority to enforce drug safety mandates, and because the law includes exceptions for some products derived from tobacco, but not for similar products containing nicotine from other sources.

Most e-cigarette applications on the market today do not yet have FDA authorization, according to the lawsuit, and fall into limbo of pending approval or being denied. Manufacturers have challenged the denials in court, and use legal maneuvers to delay agency action.

As a result, thousands of e-cigarette products — including flavored products popular among youth — are now being sold in Iowa and across the country without proper FDA authorization.

The industry group Iowans for Alternatives to Smoking and Tobacco and retailers argue the FDA has chosen to be selective in its enforcement of vaping products that are sold while the approval applications are pending, with the potential public health impact of removing e-cigarette and vapor products that have helped smokers quit cigarettes.

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