Health Law Daily Wrap Up, TOBACCO—S.D.W. Va.: Preliminary injunction issued over West Virginia vaping law, (Sep 10, 2026)

By Brian Craig, J.D.

The citizenship requirement of the West Virginia Vape Safety Act likely violates the Equal Protection Clause of the Fourteenth Amendment.

Concluding that the West Virginia Vape Safety Act aimed at regulating vape or smoke shops likely violates both the First Amendment and the Fourteenth Amendment, the federal district court in West Virginia has issued a preliminary injunction to bar certain provisions of the new law from taking effect. The court held that the citizenship requirement of the West Virginia Vape Safety Act likely violates the Equal Protection Clause of the Fourteenth Amendment by restricting noncitizens’ ability to own or operate a vape or smoke shop. The court also held that the statute’s advertising restriction likely violates the First Amendment freedom of speech (Marion Tobacco and Vape LLC v. Wooton, No. 2:26-cv-00438 (S.D.W. Va. Sept. 3, 2026)).

Background. On April 1, 2026, West Virginia enacted the Vape Safety Act establishing licensing and operational requirements for vape or smoke shops. Before an applicant can be issued a vape or smoke shop license, the statute requires an applicant to satisfy several requirements and undergo a background check. One requirement is that applicant must be a United States citizen and a person of good character, honesty, and integrity. The statute also imposes certain advertising requirements. Owners and operators of shops that sell vape products filed suit in the federal district court in West Viriginia against the Commissioner of the West Virginia Alcohol Beverage Control Administration challenging the constitutionality of the Vape Safety Act. The owners of the vape shops moved for a temporary restraining order and preliminary injunction. The court issued a temporary restraining order on August 11, 2026, to enjoin enforcement of the statute pending the court’s ruling on the motion for a preliminary injunction.

Equal Protection Clause. The court first concluded that the owners and operators of the vape shops are likely to prevail on the merits of their claim that the Vape Safety Act violates the Equal Protection Clause of the Fourteenth Amendment. The court held that requiring an applicant to be a United States citizen clearly discriminates against noncitizens, including those residing in the country lawfully on a valid green card, visa, or work authorization, by limiting vape or smoke shop licenses only to United States citizens. This provision restricts noncitizens’ ability to own, operate, manage, or otherwise participate in a vape or smoke shop. The citizenship requirement excludes a noncitizen from obtaining a license based purely on his or her status as a noncitizen rather than based on his or her “good character, honesty, and integrity.” The court found it is unclear how the citizenship requirement bears any relationship with limiting youth access to vape products. Furthermore, there are some indications that prejudice towards noncitizens may have been a basis for the citizenship requirement based on the legislative history. Therefore, the court found that the State of West Virginia has failed to demonstrate that the citizenship requirement is suitably tailored to achieve a compelling state interest.

First Amendment. The court also found that the advertising restriction likely violates the First Amendment freedom of speech. The court held that the statute prohibits nearly all advertisements and promotional activities by vape or smoke shops, and therefore encompasses advertisements and promotions of lawful, age-restricted products that appeal to audiences regardless of their age. In addition, the statute’s advertising restriction is more extensive than necessary to achieve West Virginia’s interest in preventing youth vaping. With the exception of an 18x18 inch exterior sign possessing certain specifications to identify a shop as a vape or smoke shop, the statute prohibits vape or smoke shops from conducting advertising or promotional activities. The fact that the prohibition bans nearly all forms of advertisements relating to vape and tobacco products demonstrates a lack of tailoring by the West Virginia Legislature and indicates that it did not consider the substantial burden that such a prohibition would impose on speech.

Due Process and Takings. The court, however, sided with West Virginia and rejected constitutional challenges based on the Due Process Clause and the Takings Clause. The court found that statute is not unconstitutionally vague in violation of the Due Process Clause. Furthermore, because the vape shop owners are able to file suit in state court to recover compensation for a regulatory taking, the vape shop owners are unable to obtain an injunction enjoining enforcement of the regulation.

Irreparable harm. The court also found that the noncitizen vape shop owners demonstrated irreparable harm without a preliminary injunction. The West Virginia Alcohol Beverage Control Administration notified the noncitizen vape shop owners that they may be subject to such requirements, advised them they would have to obtain a license by July 1, 2026, provided them with application and guidance materials, and threatened them with administrative, civil, and criminal penalties for noncompliance.

Balance of interests. Finally, the court found that the factors related to the balance of interests and public interest favor granting a preliminary injunction. Granting an injunction will not harm the West Virginia Alcohol Beverage Control Administration’s ability to continue enforcing other aspects of the Vape Safety Act that are currently in effect. The court limited the preliminary injunction only to the advertising and citizenship requirements. Any harm suffered by the state agency as a result of not being able to enforce the citizenship requirement will be minimal given that a person’s immigration status is not relevant to limiting youth access to vape products. Additionally, the state agency will not suffer any harm as it relates to the advertising requirement inasmuch as it has not begun enforcement of that requirement. An injunction, however, will ensure that noncitizens are not excluded from obtaining a vape or smoke shop license purely based on their status as noncitizens, allowing them to obtain one as long as they satisfy the other requirements, which in turn, will allow them to own, operate, or manage a vape or smoke shop.

Therefore, the court granted the motion for a preliminary injunction to bar implementation of certain provisions of the Vape Safety Act.

The case is No. 2:26-cv-00438.

Judge: Berger, I.

Attorneys: Alonzo D. Washington (Flaherty Sensabaugh & Bonasso) for Marion Tobacco and Vape LLC, White Hall Smoke Shop LLC, Galaxy Smokes LLC and Kimo Tobacco Vape LLC. Zachary Aaron Viglianco, WV Attorney General's Office, for Fredric L. Wooton.

Companies: Marion Tobacco and Vape LLC; White Hall Smoke Shop LLC; Galaxy Smokes LLC; Kimo Tobacco Vape LLC

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