Federal judge blocks Iowa law banning sale of most vape products

DES MOINES — A recent state law that would have banned the sale of most vaping products in Iowa has been blocked by a federal judge.

Saying the state overstepped its authority in passing the law, U.S. District Court Judge Stephanie Rose on Friday blocked the state from enforcing the law, which was passed in 2024.

The law, House File 2677, meant to ban the sale of any vape products not approved or under consideration by the federal Food and Drug Administration. Because of the FDA’s lengthy approval process, the law effectively would have banned most vape products from being sold in Iowa, sellers of vape products said.

“The Court acknowledges Iowa’s legitimate interest in protecting its citizens’ health through exercises of its traditional police powers. However, House File 2677’s regulatory approach stands as an obstacle to the accomplishment of Congress’s objective in centralizing (the Federal Food, Drug and Cosmetic Act) enforcement authority in the federal government,” Rose wrote in her decision. “Accordingly, the Court concludes that House File 2677 is impliedly preempted by federal law.”

A spokesman said the Iowa Department of Revenue — the defendant in the case — declined to comment on the judge’s ruling. A spokesman for Iowa Attorney General Brenna Bird issued a statement but declined to say whether the state plans to appeal.

“Iowa’s kids are not for sale. As a mom, Attorney General Bird understands these unregulated vapes target children,” Zach Hoffman, Bird’s chief of staff, said in a statement to The Gazette. “Iowa’s vape registry law is crucial in protecting our kids from toxic contaminants found in illegal Chinese vapes.”

A message seeking comment from the nonprofit advocacy organization Iowans for Alternatives to Smoking & Tobacco, one the plaintiffs, was not returned Monday.

The other plaintiffs are Global Source Distribution, Triton Distribution, Smokin Hot, Central Iowa Vapors and Route 69 Vapor.

What the Iowa vaping law would do

The Iowa law would have limited retailers, distributors and wholesalers who sell vapor products in the state to selling only products on a new registry that would have been limited to products that the FDA has approved for sale, or that applied before September 2022 and are awaiting a decision, or that are in litigation. There would have been a $100 per product registration fee, and any violation would have been subject to a $300 a day penalty.

The Iowa Department of Revenue had not yet published the new registry when the plaintiffs filed their lawsuit last December. The department opted to delay publication of the registry while the lawsuit was considered.

The plaintiffs argued the law is unconstitutional because the federal government has the exclusive authority to enforce the Federal Food, Drug and Cosmetic Act. Rose concurred with the argument in her ruling.

“The Court holds that while states retain broad police powers over tobacco sales, they cannot enforce the FDCA. States may permissibly ban all (vape) products or ban all flavored products, as California and New York have done through proper exercise of their police powers,” Rose wrote in her ruling. “However, states cannot create a scheme that is parasitic on the FDCA by conditioning sales based on FDA authorization status. Such a regulatory approach impermissibly intrudes upon federal enforcement authority and contravenes congressional intent to centralize FDCA enforcement in the federal government.”

The plaintiffs also claimed the state law is unconstitutional because, they argued, it “irrationally” distinguishes between vape product sellers and users and regulates vape products differently than tobacco products.

Rose rejected those arguments, but issued an injunction based on her concurrence with the argument the law infringes on federal authority.

“Although Iowa retains broad police powers to regulate the sale of tobacco products within its borders, it may not condition market access on compliance with federal authorization standards in a manner that effectively transfers the FDA’s enforcement discretion to state authorities,” Rose wrote.

More than 26 million tobacco products were submitted for FDA approval from October 2019 to February 2023, according to the research journal Tobacco Induced Diseases. As of March 2024, the FDA had authorized just 23 e-cigarette products and related devices, all of them tobacco-flavored, while rejecting more than a million applications, according to the report.

Manufacturers have challenged the denials in court and use a variety of legal maneuvers to delay agency action. Most e-cigarette applications fall into limbo of having received approval or denial to market their product.

As a result, thousands of e-cigarette products — including flavored products popular among youth — are being sold in Iowa and across the country without proper FDA authorization. The FDA has not aggressively pursued enforcement actions against manufacturers who either never applied for FDA approval or who did but persist in selling products that have not been approved.

Tom Barton of The Gazette Des Moines Bureau contributed to this report.

Comments: (515) 355-1300, erin.murphy@thegazette.com

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