Jeremy Wong smokes an e-cigarette at The Vaping Buddha on Jan. 23, 2018, in South San Francisco, California. (Photo by Justin Sullivan/Getty Images)
The State of Iowa has agreed to delay next month’s planned enforcement of a new law restricting the sale of vaping products.
The new law stipulates that electronic nicotine delivery systems — more commonly known as electronic cigarettes, e-cigarettes and vaping products — sold in Iowa must have received marketing authorization from the Food and Drug Administration or have a pending application for authorization filed by September 2020.
The law requires that the Iowa Department of Revenue publish this month a directory listing all certified vaping products, with the understanding any retailer selling products not on the registry would be subject to fines or other enforcement action next month.
In December, the companies Alternatives to Smoking & Tobacco Inc., Global Source Distribution, Triton Distribution, Smokin Hot, Central Iowa Vapors WDM and Route 69 Vapor sued the state over the new law in U.S District Court for the Southern District of Iowa.
The companies allege the new law violates the supremacy clause and equal protection clause of the U.S. Constitution, as well as the equal protection clause of the Iowa Constitution. As part of the lawsuit, the companies sought an injunction blocking next month’s enforcement of the law at least until a hearing on the matter is held.
The state has yet to respond to the companies’ allegations but in recent court filings the Iowa Attorney General’s Office agreed to stay enforcement of the law, citing a need for more “time to understand the new requirements” of the law, as well as individuals being away from work due to a honeymoon, paternity leave and “preplanned holiday obligations.”
A hearing on the matter is now scheduled for March 5.
House File 2677 was introduced in the Iowa Legislature on March 27, 2024, with backing from lobbyists for R.J. Reynolds and other tobacco companies. The bill was approved in the Iowa House on April 3, 2024, and in the Iowa Senate on April 19, 2024. Gov. Kim Reynolds signed it into law on May 17, 2024.
Most vaping products on the market today do not yet have FDA authorization, and the plaintiffs allege the FDA exercises its discretion to enforce federal requirements on a case-by-case basis — which means, they say, that the FDA has deliberately opted not to take enforcement action regarding some “unauthorized” products now on the market.
The plaintiffs claim the limited number of vapor products likely to appear on the state registry of “approved” products when it’s published in January won’t be sufficient for retailers to maintain a profitable business.
They also argue that House File 2677 is pre-empted by federal law and regulation and that the state’s plans to begin enforcing the law on Feb. 3, 2025, would force many retailers of vaping products to either shut down or incur significant civil penalties.
Their lawsuit also alleges that while the new state law allows for the sale of some unauthorized vaping products that contain tobacco-derived nicotine, it unfairly fails to allow for the sale of any unauthorized products that use non-tobacco-derived nicotine.
In their lawsuit, the plaintiffs also allege that after President-elect Donald Trump takes office in January, the new administration may change the FDA’s enforcement policies in a manner that will allow more electronic nicotine delivery systems to be marketed even while their pre-market applications are pending.