In an attempt to reduce vaping among Alabama minors, the state’s first set of vape sale regulations went into effect this week, but a federal lawsuit has expanded the list of products convenience stores can still carry.

The Petroleum and Convenience Marketers of Alabama filed federal suit in late May against HB8, claiming the new law is unconstitutional on two counts.

“First, the provision restricting the sale of many e-cigarettes to adult-only ‘specialty retailers’ is preempted by federal law,” the complaint reads.

“This new provision prohibits non-specialty retailers (like gas stations and convenience stores that hold tobacco permits) from selling any e-cigarette, unless that e-cigarette has FDA authorization.”

“In other words, gas stations and convenience stores can no longer sell an e-cigarette, unless that e-cigarette has FDA authorization,” it continues.

“But only FDA has the power to enforce the federal Food, Drug & Cosmetic Act (FDCA). And to the extent that the specialty-retailer provision purports to allow the ABC Board (and derivatively the Alabama Law Enforcement Agency) to bring enforcement against retailers based solely on whether a product has been formally authorized by FDA, this provision is preempted by federal law.”

Under the law originally, Alabama convenience stores were only allowed to sell 34 tobacco and menthol-flavored e-cigarette products approved by the Food and Drug Administration.

All other flavors — including hundreds currently pending FDA review — were banned from sale except in age-restricted vape shops where only those 21 and over can enter.

The law, sponsored by Rep. Barbara Drummond, D-Mobile, also banned nicotine alternatives from being sold in vaping machines while also adding new licensing regulations for businesses.

This is where the complaint claims the second constitutional violation occurred.

“Second, the provision completely prohibiting the sale of any next-generation tobacco product that contains any component manufactured abroad, unless the product has FDA-marketing authorization, is unconstitutional,” it reads.

“The enactment of this provision was driven by the understandable desire to promote public health. But that desire led the legislature to an unconstitutional solution. This provision, like the specialty-retailer provision, is preempted by the FDCA. Again, only FDA can enforce that federal law.”

Bart Fletcher, president of the PCMA, told Alabama Political Reporter that the agreement the state reached after the complaint “effectively allows convenience stores to continue selling the same products that have been legal to sell in the state since 2022.”

The agreement reached with the state allows for all products on the FDA’s “pending” list or the state’s “Electronic Nicotine Delivery System ENDS Directory.”

“I’m certain there are some stores selling products not on that list that will need to be removed from shelves, but those products have been illegal since 2022,” Fletcher told the publication.

A portion of the suit that deals with part of the law only allowing for vape and e-cigarette options that are made, packaged, labeled, and manufactured in the United States is still pending until the provision takes effect on Oct. 1.

Efforts to reach Fletcher and Drummond were not immediately successful.



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