Wisconsinites for Alternatives to Smoking v. David Casey

── Wisconsinites for Alternatives to Smoking v. David Casey ── Court: Court of Appeals for the Seventh Circuit Date: April 21, 2026 Category: General In the United States Court of Appeals For the Seventh Circuit ____________________ No. 25-2565 WISCONSINITES FOR ALTERNATIVES TO SMOKING & TOBACCO, INC., et al., Plaintiffs-Appellants, v. DAVID CASEY, Secretary of the Wisconsin Department of Rev- enue, in his official capacity, Defendant-Appellee. ____________________ Appeal from the United States District Court for the Western District of Wisconsin. No. 3:25-cv-00552 — William M. Conley, Judge. ____________________ ARGUED DECEMBER 10, 2025 — DECIDED APRIL 21, 2026 ____________________ Before BRENNAN, Chief Judge, and LEE and KOLAR, Circuit Judges. BRENNAN, Chief Judge. The Food and Drug Administration regulates electronic products that deliver nicotine to the user, like electronic vaping devices and e-cigarettes. That authority includes review and approval of those products before they are marketed and sold. See 21 U.S.C. § 387j. 2 No. 25-2565 Wisconsin enacted a statute in 2023 that requires FDA au- thorization before electronic nicotine delivery systems may be sold. Wis. Stat. § 995.15. Manufacturers, distributors, retailers, and users of vapes and e-cigarettes sued to enjoin enforcement of that statute. In their view, the federal statutes granting the FDA exclusive authority over premarket author- ization preempt the Wisconsin statute. The district court dis- agreed and denied a preliminary injunction. The text of the applicable federal laws—the Federal Food, Drug, and Cosmetic Act, as well as the Tobacco Control Act— does not preempt the states’ authority to regulate the sale and marketing of tobacco and tobacco-related products, so we af- firm. I. A. Background Electronic nicotine delivery systems (ENDS) products include “[v]apes, vaporizers, vape pens, hookah pens, elec- tronic cigarettes (e-cigarettes or e-cigs), e-cigars, and e— pipes.” 1 These products typically use a liquid containing tobacco-derived nicotine “heated to create an aerosol that is inhaled” by the user. Id. Wisconsin Statute § 995.15 requires the state’s Department of Revenue to create a directory of ENDS products that may lawfully be sold in the state. Wis. Stat. § 995.15(6). 1 E-Cigarettes, Vapes, and other Electronic Nicotine Delivery Systems (ENDS) (March 12, 2026), https://www.fda.gov/tobacco-products/prod- ucts-ingredients-components/e-cigarettes-vapes-and-other-electronic- nicotine-delivery-systems-ends. No. 25-2565 3 A product may qualify for the directory in any of three ways: (1) its manufacturer has received an FDA premarket au- thorization order; (2) it was marketed in the U.S. as of August 8, 2016, it has a pending FDA premarket authorization appli- cation submitted by September 9, 2020, and that application remains under review or the final decision has not taken ef- fect; or (3) it contains hemp but not nicotine. Wis. Stat. § 995.15(2). As of September 1, 2025, retailers and manufac- turers are prohibited from selling any ENDS products not listed in the directory. Wis. Stat. § 995.15(9)(a)–(b). Businesses that sell such unlisted ENDS products are sub- ject to forfeiture penalties of $1,000 per day per product and the seizure of the unauthorized products as “contraband.” Wis. Stat. § 995.15(9)(a)–(b), (11)(a). Further, the sale of un- listed vaping products constitutes “an unfair and deceptive trade practice in violation of” Wis. Stat. § 100.20. Id. at 995.15(9)(c). So “[a]ny person” financially harmed may com- mence a civil suit to recover twice that “pecuniary loss, to- gether with costs, including a reasonable attorney fee.” Wis. Stat. § 100.20(5).