Alabama’s Alcoholic Beverage Control Board and convenience stores in the state have agreed in federal court on changes to a new vape law. | Shutterstock

Alabama’s Alcoholic Beverage Control Board (ABC) and convenience stores in the state have agreed in federal court on changes to a new vape law.

The agreement is between the state’s ABC Board, the Alabama Law Enforcement Agency and the Petroleum & Convenience Marketers of Alabama (P&CMA), according to court documents filed in the United States District Court for the Middle District of Alabama Northern Division.

Bart Fletcher, president of the Montgomery, Alabama-based P&CMA, told CSP the agreement allows “convenience stores to continue to sell both the 34 products that have received final approval and the products that are on the FDA pending list as long as they also appear in the Alabama ENDs (Electronic Nicotine Delivery Systems) directory.”

The agreement comes after a bill, HB8, restricting the types of vape products that can be sold at convenience stores, was signed into law May 14 by Gov. Kay Ivey.

That bill spurred the P&CMA to file a temporary restraining order and preliminary injunctive relief request on Tuesday against the Alabama ABC Board and its members, as well as the Alabama secretary of law enforcement and the State Bureau of Investigations director.

The P&CMA’s official statement reads, “As a result of an agreement between the Alabama Alcoholic Beverage Control Board and our organization, convenience stores with state-issued tobacco permits may continue to sell e-cigarettes that are on the market consistent with the U.S. Food & Drug Administration’s enforcement policy and are on the state’s Electronic Nicotine Delivery System ENDS Directory.”   

The P&CMA lawsuit said two provisions in HB8 are unconstitutional.

“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 lawsuit said, “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.”

This led to the agreement, with a federal court issuing a joint stipulation regarding HB8, according to the National Association of Tobacco Outlets (NATO).

“The ruling allows vapor products that have a PMTA (premarket tobacco product application) marketing granted order, a pending PMTA application or a court stay on a PMTA marketing denial order (MDO) to be sold in convenience stores,” NATO said in a Friday newsletter. “Previously, the bill only allowed vapor PMTA application pending and court stayed MDOs to be sold at specialty stores (defined 50% of inventory in vapor products and alternative nicotine products). A court challenge is still pending regarding allowing only vapor and alternative nicotine products that are made, packaged, labeled and manufactured in the United States as that provision is not scheduled to become effective until Oct. 1, 2025.”

According to the National Association of Convenience Stores (NACS), those supporting the law claim it is a “move to stop youth sales of flavored vape products by moving the product to adult-only locations, assuming that specialty vape shops card at the door.”

NACS General Counsel Doug Kantor said, “The problem with this is that those stores are often actually the worst ones at making sure minors don’t purchase the product. The convenience-store compliance track record is far, far better at selling age-restricted products, and so they’re essentially undermining their own stated goals when they do something like this.”

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