A new law is in effect this month that could have heavily restricted the kinds of vapes that are on the shelves in Alabama convenience stores.

But the Petroleum and Convenience Marketers of Alabama filed federal suit against the new law, leading to an agreement that will greatly expand the number of product convenience stores can continue to sell.

Bart Fletcher, president of the PCMA, told APR that the agreement effectively allows convenience stores to continue selling the same products that have been legal to sell in the state since 2022.

The new law, House Bill 8 sponsored by Rep. Barbara Drummond, D-Mobile, would have limited convenience stores to only selling the 34 products that have received full FDA approval. 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 said.

The lawsuit brought by PCMA alleged two unconstitutional provisions within the new law passed by legislators last month. 

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

“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. 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.”

There is a portion of the lawsuit still pending regarding a section of the law only allowing for vape and e-cigarette options that are ade, packaged, labeled and manufactured in the United States because that provision does not take effect until Oct. 1, 2025.