Health Law Daily Wrap Up, TOBACCO—Ala. Sup. Ct.: Preliminary injunction denied where challenge to ENDS Act failed to demonstrate likelihood of success, (Jul 9, 2026)

By Jeffrey H. Brochin, J.D.

Neither the federal preemption argument nor the dormant Commerce Clause argument sufficed to show a likelihood of success on the merits.

The Supreme Court of Alabama has affirmed the decision of the trial court which denied the motion for preliminary injunction filed by Vapor Technology Association (Association) in a lawsuit brought by the Association challenging the constitutionality of Alabama’s Act No. 2025-403, Ala. Acts 2025 (the Act). The statute was enacted in order to regulate the sale of electronic nicotine delivery systems (ENDS) (or e-liquids, commonly referred to as electronic cigarettes, e-cigarettes, or vapes) in the state. The trial court granted the Association’s motion for a temporary restraining order (TRO)—after finding that the plaintiffs were likely to suffer immediate and irreparable harm if the Alabama Act was not enjoined—however, the court denied the motion for preliminary injunctive relief (Spencer v. Vapor Technology Association and Southside Vape, LLC, No. SC-2025-0800 (Ala. Sup. Ct. July 2, 2026)).

Health, safety, and welfare of residents. After determining that the FDA was intentionally delaying enforcement in effectively regulating ENDS, and after finding that ENDS were "inherently harmful," and "highly addictive," the Alabama legislature enacted the Act in the interests of the health, safety, and welfare of the residents of the state. The Act was composed of three parts: the first part established certification requirements effective October 1, 2025, the second part established set fees associated with offsetting the costs of processing certifications, and the third part concerned violations and penalties for businesses that stocked or sold ENDS products not listed on the state’s ENDS Product Directory. Furthermore, The Act provided that beginning October 1, 2025, “no e-liquid, [ENDS], or alternative nicotine product may be added to the [ENDS] Directory maintained by the Department of Revenue” unless certain stringent requirements were met.

In response to the Association’s constitutional challenges which alleged violations of the Supremacy Clause and the dormant Commerce Clause, the trial court granted the requested TRO but denied the motion for preliminary injunction. The instant cross appeals were then filed.

State’s standing challenge. The court first addressed the state’s contention that the Association lacked standing to sue. After examining the Act’s provisions as to businesses that sell or stock prohibited ENDS facing punishment with stiff penalties, and having their products declared as contraband subject to seizure by law enforcement, the court concluded that those types of injuries readily qualified as concrete injuries. Furthermore, the asserted injuries were not hypothetical, rather, they flowed directly from enforcement of the Alabama Act, thereby satisfying the causation element for a TRO. As to redressability, if the Alabama Act was found to be unconstitutional, as the Association alleged, then their injuries would be remedied because they could continue to sell their products without interference by the state. In sum, the court found that the Association had standing to sue.

Federal preemption issue. The court noted that the trial court presumably denied the injunction on the basis that the Association did not have a reasonable chance of success on the ultimate merits of their constitutional arguments, and the court therefore began its review by examining whether implied preemption applied. Where implied preemption is alleged, the court was required to determine whether compliance with both state and federal law was impossible, specifically asking whether “the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.”

The Association contended that the Alabama Act was impliedly preempted by 21 U.S.C. § 337(a) of the federal Food, Drug, and Cosmetics Act (FDC Act), which provides that all proceedings to enforce or restrain violations of the FDC Act “shall be by and in the name of the United States” and that under the Alabama Act, it was up to the state to decide whether an ENDS had a marketing order under the FDA or fell under the FDA's deferred-enforcement policy. The state also assumed responsibility as to whether and when to seek civil or criminal penalties against purported offenders. Such an enforcement regime effectively transferred the FDA's complete enforcement discretion to the state, making enforcement decisions that only the FDA was authorized to make.

Carefully balanced preemption scheme. The court observed that in 2009, when Congress amended the FDC Act through the Tobacco Control Act (TCA), it expressly sought to address the legality of state regulation of tobacco products through a carefully balanced preemption scheme consisting of a preservation clause, a preemption clause, and a savings clause. The preservation clause reserved power in the states to regulate the sale, distribution, possession, or use of tobacco products more stringently than those products were regulated under the federal requirements. It was under the preservation clause that states retained broad power to regulate, and even ban, the sale of tobacco products. The preemption clause, in turn, carved out eight categories that were preempted, none of which applied to the sale of tobacco products. Finally, the savings clause protected the regulation of tobacco sales distribution from preemption.

Taken together, these clauses in the TCA created a “tripartite preemption structure,” showing Congress's decision to reserve the states' power to regulate tobacco “in addition to, or more stringent than” the TCA's requirements. Accordingly, the court concluded that the Association was not likely to succeed on the merits of its federal preemption claim.

Dormant Commerce Clause. The Association next argued that the Act violated the dormant Commerce Clause by regulating interstate commerce. Notably, the Commerce Clause includes not only an affirmative authorization for Congress to regulate interstate commerce, but also a corresponding restraint on the power of state governments or municipalities to regulate that commerce (such restraint being referred to as the dormant Commerce Clause). However, when an act facially discriminates against foreign commerce, states are permitted to discriminate only if they have a legitimate, and not pretextual, reason to justify, and can proffer a rationale for such discrimination.

Even though the Act clearly discriminated against foreign trade, the state offered a compelling reason to substantiate that the Act's restriction served a legitimate state purpose aimed directly at protecting the health and safety of the citizens of the state and was not a measure to protect, benefit, or favor the state's economy at the expense of international or interstate trade. Specifically, the declarations of the legislature regarding the prohibition on the sale of foreign products made clear that the prohibition was not arbitrarily discriminatory or a pretextual obstruction to favor Alabama businesses; rather, the prohibition served a legitimate local purpose related to the health and safety of its citizens. The court agreed, finding that the legislature had not overstepped its role in regulating foreign commerce; rather, it had declared a legitimate interest to protect the state's citizens by regulating a potentially harmful product and by restricting its sale and distribution. Accordingly, the court concluded that the Association was not likely to succeed on the merits as to this second constitutional challenge.

Based on the foregoing, the court affirmed the decision of the trial court in denying the motion for preliminary injunction.

The case is No. SC-2025-0800.

Judge: Sellers, J.

Attorneys: Misty Shawn Fairbanks Messick, Office of the Attorney General, for Col. Alan Spencer. Robert D. Segall (Screws & Gill, P.A.) for Vapor Technology Association and Southside Vape, LLC.

Companies: Vapor Technology Association and Southside Vape, LLC

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