Wisconsinites for Alternatives to Smoking & Tobacco Inc v. David Casey
Wisconsinites for Alternatives to Smoking & Tobacco Inc v. David Casey
April 21, 2026·25-2565·Panel Decision·Brennan·By Aisha Johnson
The Seventh Circuit affirmed the denial of a preliminary injunction against a Wisconsin statute requiring FDA authorization for electronic nicotine delivery systems. The court held that the Federal Tobacco Control Act does not preempt state laws regulating the sale of tobacco products.
Wisconsin enacted a statute in 2023 requiring FDA authorization before electronic nicotine delivery systems may be sold. Manufacturers and retailers sued to enjoin enforcement, arguing federal preemption and an Equal Protection violation. The district court denied a preliminary injunction, finding the state law was not preempted.
The court’s reasoning
The court analyzed the tripartite preemption structure of the Tobacco Control Act, noting the preservation clause allows states to enact regulations in addition to federal requirements and the savings clause exempts regulations relating to the sale of tobacco products from preemption. The court concluded that the state statute did not conflict with federal objectives and that the FDA’s enforcement authority was not infringed by the state’s reliance on federal standards.
What it means going forward
The decision upholds Wisconsin’s ability to enforce its directory of approved vaping products, allowing retailers to face penalties for selling unlisted items while litigation proceeds.
