CHICAGO (CN) - A Wisconsin trade group representing a group of smoke shops and vape users rallied against a newly-enacted state ban on electronic cigarettes before a wary Seventh Circuit panel on Wednesday.

James Fraser, an attorney on behalf of the trade group and vape users, maintained before the three-judge panel that a lower court erred in dismissing his clients' complaint, given that federal law preempts the state statute they challenged.

U.S. Circuit Judge Joshua Kolar, a Joe Biden appointee, appeared dubious about the jurisdiction given that these products are prohibited regardless of any action from the lower court.

Fraser, of D.C.-based firm Thompson Hine, responded that trying to set up a jurisdictional test for Food, Drug and Cosmetic Act violations would be simply unworkable, because you can always find a product with a FDCA violation.

"There are a lot of products on the market today, probably within 100 feet of this courthouse at a store, that do not comply with the Food Drug and Cosmetic Act," Fraser said. "If you go into any CVS, there are over the counter drugs, they are not in compliance with the law. Saying that a party cannot be injured in a legal dispute over its ability to sell those products would really create a problem in terms of jurisdiction in order to regress ability for all sorts of products."

All electronic cigarettes are subject to federal regulation by the Food and Drug Authority under the Family Smoking Prevention and Tobacco Control Act, which is codified as a subchapter of the Food, Drug and Cosmetic Act.

The FDCA requires all electronic cigarettes to undergo a premarket tobacco product application process, which requires manufacturers to submit scientific data that demonstrates that their is an appropriate protection of public health.

Enforcement of these premarket reviews for e-cigarettes has oscillated, however, and the FDA has exercised enforcement discretion due to competing Congressional objectives in enacting the Tobacco Control Act back in 2009. The FDA also has not required the removal of products without premarket authorization from the market despite their lack of an FDA marketing order.

Near the end of 2023, the Wisconsin legislature created a directory of electronic cigarettes that can legally be sold in the state, and banned all devices not on the directory. For a product to appear on the directory, its manufacturer must be in either partial or full compliance with the FDA's premarket authorization requirements.

The law went into effect in Wisconsin on September 1, 2025. Trade group Wisconsinites for Alternatives to Smoking and Tobacco Inc. asked a federal judge to block the enforcement of the Wisconsin law, which she declined.

Charlotte Gibson, an attorney on behalf of the state of Wisconsin and its Department of Revenue Secretary David Casey maintained before the panel of judges that Fraser was misrepresenting the factual basis of the case, because the FDA already doesn't want these e-cigarette products widely sold.

"The whole factual premise of this non enforcement is not supported by the record, and that affects two parts of the case. It affects standing because their theory that, well, we're not perfectly complying with the law, but that shouldn't affect our standing," Gibson said. "That's not your factual scenario here. This product is flat out, illegal, under federal law, no matter how much how this case case comes out."

In a similar vein, the panel of judges was dubious about how the Wisconsin law preempted federal law, given that it has virtually the same requirements.

"The preemption clause prohibits a state or one of its subdivisions from establishing a requirement that is different from or in addition to," U.S. Circuit Judge John Lee said. "What's notably absent is kind of identical to [existing federal law]. And there seems to be some cases that talk about when there's concurrent jurisdiction to inferforce the same standard, that that doesn't necessarily raise the type of preemption concerns that there might be if the state were trying to enforce a different standard."

"Here, I think the argument has been made that, in fact, the state is trying to basically enforce the same standard that the FDA is requiring," the Joe Biden appointee continued. "What is your best authority for the argument that implied preemption is appropriate, even when the state standard mirrors or a identical to the federal standard?"

Fraser pointed to a decision from the Third Circuit from Buckman Co. v. Plaintiffs' Legal Committee, which effectively held that if the FDCA is an essential element of a particular state or local statute, the FDCA preempts the statute.

Lee then presented Fraser with a hypothetical: What if the FDA started going after every product that didn't get premarket authorization? Would the preemption argument still apply there?

"The problem here is that that's not what we're not talking about a situation where the state, like some states, as is noted in the briefing, have just decided they're going to ban flavored vaping products. You just can't buy them, no matter what the FDA does. And that is not preempted because that is not basing its decision on what the FDA is doing," Fraser said.

In response to Lee's hypothetical, Fraser said he doubts that the FDA would ever do that because it knows that would drive some people back to standard cigarettes, which are more harmful than vaping products.

Chief U.S. Circuit Judge Michael Brennan, a Donald Trump appointee, joined Lee and Kolar on Wednesday's panel, which did not indicate when it might rule on the matter.

Source: Courthouse News Service