Businesses that operate vape shops in Northeast Wisconsin are part of a federal lawsuit challenging the legality of Wisconsin’s ban on vaping.
Wisconsinites for Alternatives to Smoking and Tobacco, Inc. (WiscoFAST), filed a lawsuit June 30 in the United States District Court for the Western District of Wisconsin to block the state-wide ban on vaping. This law directs the Wisconsin Department of Revenue to impose fines on manufacturers and sellers of electronic nicotine delivery systems (ENDS, also known as e-cigarettes or vapor products) that lack U.S. Food and Drug Administration marketing authorization. On July 8, WiscoFAST and the other plaintiffs moved for a preliminary injunction against the enforcement of the statute.
Plaintiffs include The Supply Plus with stores in Oshkosh and Fond du Lac, and Johnny Vapes with stories in Green Bay, Bellevue, Manitowoc and Wausau. Other plaintiffs include Distro Guys Wholesale in Cudahy and Texas-based Wages and White Lion Investments, which has a history of litigation with the FDA.
Starting no later than Sept. 1, 2025, this law will prohibit the sale of many ENDS products currently available in Wisconsin, including those with pending FDA premarket tobacco product applications. The law also imposes a backdoor ban on federally legal non-nicotine vaporizer products, such as those used with hemp, by requiring FDA authorization that does not apply to these products.
Unauthorized vape products that are now on shelves must be removed by Sept. 1, or businesses could face $1,000-per-day fines.
The lawsuit, filed against Wisconsin Secretary of Revenue David Casey, argues that the state statute violates the Supremacy Clause of the U.S. Constitution by usurping the FDA’s exclusive authority to enforce the Federal Food, Drug, and Cosmetic Act. It argues that the law violates the Equal Protection Clause of the Fourteenth Amendment by arbitrarily prohibiting ENDS with non-tobacco-derived nicotine while allowing some tobacco-derived nicotine products.
“Section 995.15 will strip Wisconsinites of their right to purchase the vaping products they use to stay smoke-free, while threatening to shutter 3,000 small businesses that are vital to our state’s economy,” said Tyler Hall, President of WiscoFAST. “This law disregards the FDA’s careful approach to regulating ENDS and could push former smokers back to deadly combustible cigarettes. We’re fighting to protect consumer choice and the livelihoods of thousands of Wisconsin workers.”
Plaintiffs include WiscoFAST, representing distributors and retailers statewide, as well as Distro Guys Wholesale, TruVibe Inc. (dba The Supply Plus), Johnny Vapes, LLC, Visfot, Inc. (dba Nara Smoke), Wages and White Lion Investments, LLC (dba Triton Distribution), and Wisconsin consumers who rely on ENDS to avoid smoking. These businesses face severe financial penalties or closure, and consumers will lose access to products critical to their health choices. This threatens jobs and local economies across Wisconsin.
