A Wisconsin trade organization filed a lawsuit in federal court on June 30 over a new law that took effect July 1 that pertains to vape sales in Wisconsin.
Wisconsinites for Alternatives to Smoking and Tobacco, Inc. (WiscoFAST), filed the lawsuit in the United States District Court for the Western District of Wisconsin to block Wisconsin Statutes section 995.15. The law directs the Wisconsin Department of Revenue to impose fines on manufacturers and sellers, including convenience stores, of electronic nicotine delivery systems (ENDS) that lack Food and Drug Administration marketing authorization.
Unauthorized vape products that are now on shelves must be removed by Sept. 1, or businesses could face $1,000-per-day fines.
To date, the FDA has authorized 34 e-cigarette products and devices to be sold in the United States. Despite only these 34 are authorized to be sold, retailers sell products that do not have FDA authorization. The FDA is continuing to prioritize enforcement regarding the lack of marketing authorization against any ENDS product, particularly those that are targeted to minors or whose marketing is likely to promote use of ENDS by minors.
On July 8, WiscoFAST and the other plaintiffs moved for a preliminary injunction against the enforcement of section 995.15. The lawsuit, filed against David Casey, secretary of the WisconsinDepartment of Revenue, challenges that Section 995.15 violates the Supremacy Clause of the U.S. Constitution by “usurping the FDA’s exclusive authority to enforce the Federal Food, Drug, and Cosmetic Act (FDCA),” WiscoFAST said in a statement. FDCA gives the FDA the authority to regulate all tobacco products, including cigarettes, electronic cigarettes, cigars and hookah tobacco.
WiscoFAST said the lawsuit argues that the law violates the Equal Protection Clause of the Fourteenth Amendment by arbitrarily prohibiting ENDS with non-tobacco-derived nicotine while allowing some tobacco-derived nicotine products.
“Section 995.15 will strip Wisconsinites of their right to purchase the vaping products they use to stay smoke-free, while threatening to shutter 3,000 small businesses that are vital to our state’s economy,” said Tyler Hall, president of WiscoFAST, in a statement. “This law disregards the FDA’s careful approach to regulating ENDS and could push former smokers back to deadly combustible cigarettes. We’re fighting to protect consumer choice and the livelihoods of thousands of Wisconsin workers.”
Molly Collins, director of Advocacy for the American Lung Association (ALA) in Wisconsin, told CSP that the law will be ineffective. She believes raising the age requirement and an increase in the price of vapes are more effective tools.
“The American Lung Association does not feel like these laws have shown a public health benefit,” Collins said. “We really think they’re a diversion for what we know works, which is raising the age requirement and the price of the vapes. These are more effective tools."
Want to learn more about tobacco? Sign up for CSP’s Tobacco+ Forum in September here.
Members help make our journalism possible. Become a CSP member today and unlock exclusive benefits, including unlimited access to all of our content. Sign up here.