For more than a decade, the U.S. market has been flooded with electronic cigarettes. Only a handful of brands have received any authorization from the FDA allowing them to be marketed or sold in the U.S. The prices have dropped, the nicotine levels have increased, and the range of youth-appealing flavors has ballooned. Because unauthorized by the U.S. Food and Drug Administration (FDA), these products are illegal under federal law, and virtually all are flavored products attractive to youth. Some state and local governments are using new enforcement strategies to supplement federal action against unauthorized or otherwise illegal e-cigarettes or other tobacco products. Here are some examples of legal actions that state and local governments are taking.
Hawaii
On January 16, 2025, the Hawaii Attorney General sent letters to over 800 tobacco retailers and distributors in Hawaii asking them not to sell tobacco products that have not been authorized for sale by FDA. Press release.
Illinois
On January 16, 2025, the Illinois Attorney General filed a lawsuit against three Illinois businesses that market and sell Posh e-cigarettes.
People of the State of Illinois v. Chicago Merchandize Co., Cook County Circuit Court, No. 2025CH00422, filed January 16, 2025, complaint.
The complaint alleges that defendants import flavored e-cigarettes from China, and sell them in Illinois. No Posh e-cigarettes have been granted market authorization by FDA and one of the defendants received an order denying authorization to market these products. Defendants market the products on social media including using the hashtag #prom for the Prom Noir model and marketing that parallels Disney’s marketing of the Tron franchise, and sell an interactive e-cigarette that can be used to make calls and listen to music. Some products can be puffed 30,000 times. The complaint alleges violations of Illinois’s Preventing Youth Vaping Act (which prohibits sale of e-cigarettes that do not have FDA pre-market authorization, and marketing of e-cigarettes in ways that encourage minors to use e-cigarettes) and Consumer Fraud Act (which prohibits unfair competition and unfair or deceptive acts.)
New Jersey
On January 16, 2025, the New Jersey Attorney General sent warning letters to nearly 11,000 New Jersey businesses reminding them that sale of flavored e-cigarettes violates state law. Press release.
Previously, in August 2024, the Attorney General issued notices of violation to 19 retailers, assessing civil penalties of $4,500 each, for selling flavored e-cigarettes that are unlawful for sale in New Jersey. Press release.
New York
On January 16, 2025, the New York Attorney General filed suit against two companies operating a vape shop in New York – G Smoke 360 Corp. and Liberty Smokeland – and their owners, for selling flavored e-cigarettes in violation of the state laws prohibiting the sale of flavored e-cigarettes, sales to minors, and operating without the required state licenses.
People of the State of New York v. G-Smoke360 Corp. dba G Smoke, Supreme Court of the State of New York, Herkimer County, filed January 16, 2025, complaint.
G Smoke had previously been fined and the owners stipulated to various violations including offering 5,700 packs of flavored e-cigarettes for sale and displaying e-cigarettes for self-service. New York now seeks a permanent injunction and monetary penalties.
California
On January 15, 2025, the California Attorney General brought suit against two California companies that imported, distributed and sold Flum brand e-cigarettes, as well as their founder.
People of the State of California v. Flumgio Technology Inc., Superior Court, County of Los Angeles, filed January 15, 2025, complaint.
One of the brands is the FLUM Mello, which contains the equivalent amount of nicotine as 34 packs of cigarettes, is a disposable with an animated screen, and comes in flavors like cherry and strawberry. Another brand is the FLUM Clear, marketed as not having a flavor; the complaint alleges it has a menthol or mint flavor and that its sale is in violation of state law prohibiting sale of flavored tobacco products.The complaint states that both businesses failed to hold the necessary licenses and that the individual defendant made false statements in the license applications including that the businesses would not operate as importers when in fact they did. California seeks injunctive relief and monetary penalties.
Connecticut
On January 15, 2025, the Connecticut Attorney General announced service of investigative demands (subpoenas) on twelve retailers and two wholesalers in Connecticut that had been found to be selling illegal imported flavored e-cigarettes. The Attorney General stated that the purpose of the investigation is to identify the suppliers and distributors of the unlawful products. Press release.
Minnesota
On January 15, 2025, the Minnesota Attorney General filed a lawsuit against High Light Vape Company, a Florida business, two of its managers, and an affiliated entity.
State of Minnesota v. Venture Concepts Group LLC dba High Light Vape Co., District Court, 2nd Judicial District, Ramsey County, No. 62-CV-25-382, filed January 15, 2025, complaint.
The complaint quotes the company’s marketing that it makes an e-cigarette that “cleverly disguises itself as a highlighter, ensuring seamless and covert vaping in any setting” and that it markets it for “stealth vaping” in places where vaping is prohibited. The product comes in flavors like strawberry cheesecake and magic fruit. Minnesota alleges that High Light does not do adequate age verification, and engages in deceptive marketing and trade practices, and consumer fraud. Minnesota seeks restitution and civil penalties, and injunctive relief.
At the same time the Attorney General announced a civil investigation into Loon a/k/a Maduro Distributors, a Minnesota manufacturer of several brands of e-cigarettes. Press release.
Arizona
On April 22, 2024, the Arizona Attorney General sent letters to chain retailers, such as 7-Eleven, that previously signed a Tobacco Assurance of Voluntary Compliance (AVC) with the Arizona and other state attorneys general. (Tobacco AVCs are agreements with the major chain retailers requiring them to take additional steps to prevent marketing and sales of tobacco products to minors, such as limiting advertising and training employees.) The letters warned the retailers not to sell tobacco products that do not have marketing authorization from FDA. The Attorney General sent similar letters to individual retail stores in Arizona that sell tobacco products.
Ohio
On April 5, 2024, the Ohio Attorney General sent letters to Ohio retailers warning them not to sell e-cigarettes that do not have marketing authorization from FDA, and threatening legal action if they continue to do so. Since then, the Ohio Attorney General has filed lawsuits against at least three Ohio retailers, including Central Tobacco in Delaware, Elev8 Smoke Shop in Cincinnati, and Orrville Tobacco and Vape Shop in Orrville. See, for example:
State of Ohio v Central Tobacco and Stuff d/b/a Central Tobacco
Delaware County, 24-CVH-070664, filed July 9, 2024, complaint
This action was brought against a tobacco store in Delaware, OH, seeking civil penalties, injunctive relief, and declaratory relief. The complaint alleged that Central Tobacco sold e-cigarette brands with misleading statements on the packs stating “Sale Only Allowed in the United States,” even though they did not have marketing authorization orders from FDA and therefore are illegal under federal law. The complaint alleged unfair or deceptive acts in violation of the Ohio Consumer Sales Practices Act (CSPA), R.C. 1345.02; unconscionable acts in violation of CSPA, R.C. 1345.03; violations of the Exclusions and Limitations in Advertisements Rule, OH Admin. Code 109:4-3-02; and violations of Substantiation of Claims in Advertising, OH Admin. Code 109:4-3-10.
City of New York
In 2023, the City of New York sued several online distributors and retailers, as well as their principals, seeking injunctive relief, damages, and civil penalties, for distribution and sale of e-cigarette brands that do not have FDA authorization. The defendants are located in Texas, New York, and other states.
The complaint alleged delivery of vape products in violation of the PACT Act, 15 USC 375 (NYC has standing to sue under the PACT Act because it has authority to levy excise and sales taxes); racketeering under 18 USC 1961, 1341, and 1343; conspiracy to violate RICO, 18 USC 1962; sale of flavored products in violation of state and city law, NY PHL 1399-mm-(1), 1399-ll, and NYC Admin. Code 17-715; and public nuisance by selling tobacco products to minors.
City of New York v. Magellan Tech., Inc.
S.D.N.Y., 23 CIV. 5880 (LLS), 2024 WL 2701956, filed July 10, 2023, amended complaint
Defendants moved to dismiss. On May 24, 2024, the district court allowed the public nuisance and state law claims to proceed; allowed some PACT Act claims to proceed and dismissed the others with leave to amend; and dismissed one out-of-state defendant for lack of personal jurisdiction.
In April 2024, the City sued another eleven businesses for violating “nearly every federal, New York State and New York City law regulating the marketing, distribution, and sale of flavored e-cigarettes.” The action, filed in state court, seeks injunctive relief, damages, and penalties, for distribution and sale of millions of dollars of vape products that do not have FDA authorization. Allegations in the complaint include sale of flavored products in violation of state and city law, NY PHL 1399-mm-(1), 1399-ll, and NYC Admin. Code 17-715; sale and marketing of products without holding a state “vape certificate” and delivering them without marking them as vapor products in violation of state law, NY PHL 1399-ll; and public nuisance.
City of New York v. EnviroMD Group, LLC
NY Supreme Court, New York County, 451009/2024, filed April 4, 2024, complaint
City of Los Angeles
On May 3, 2024, the City of Los Angeles filed suit against a chain of over 20 tobacco stores located in and around Los Angeles, an online retailer, and their CEO. The complaint alleged violations of the City’s prohibition on online sales, LMC 46.90.1, 49.91; the state and City prohibition on the sale of flavored products, H&S 104559.5, LAMC 46.90.1; and the state’s prohibition on sales to minors, PC 308 and B&P 22956; all of which constitute unlawful acts in violation of the state Unfair Competition Law, B&P 17200.
People v. Carpentieri, et al. Superior Court, County of Los Angeles, 24STCV11322, filed May 3, 2024, complaint
The complaint alleged violations of the City’s prohibition on online sales, LMC 46.90.1, 49.91; the State’s and City’s prohibitions on the sale of flavored products, H&S 104559.5, LAMC 46.90.1; and the state’s prohibition on sales to minors, PC 308 and B&P 22956; all of which constitute unlawful acts in violation of the state Unfair Competition Law, B&P 17200.
City and County of San Francisco
In 2023, San Francisco sued three southern California wholesalers and retailers, seeking injunctive relief, civil penalties, and attorney’s fees.
People v. Millenial One, Inc. d/b/a The Finest E-Liquid, Superior Court, County of San Francisco Superior Court, CGC-23-610794, filed December 4, 2023, complaint
The complaint alleged that each defendant made online sales of flavored tobacco products that had not been authorized by FDA, to individuals in San Francisco, in violation of California’s statutes regulating remote sales of tobacco products and of San Francisco’s Health Code 19S.2 prohibiting the sale of flavored products. One of the defendant’s described the “Finest Vanilla Almond Custard” e-liquid that it sold as “fusing the flawless pairing of luscious vanilla beans, creamy custard, and a slight hint of almonds,” and stated that another e-cigarette it sold had a matcha flavor and provided 6,000 puffs per device. These unlawful acts also constitute unfair business practices in violation of the state’s Unfair Competition Law, B&P 17200
On December 20, 2024, the Superior Court entered a stipulated judgment against two defendants, enjoining them permanently from selling flavored products to persons in San Francisco and requiring them to certify their continued compliance each year. The two companies were ordered to pay a total of $68,000 in penalties, fees and costs. <Stipulated judgment> Earlier in the litigation, a third defendant was dismissed.
City of San Diego
On August 22, 2023, the City of San Diego sued Payless Smoke Shop and Keg ‘N Bottle, two chain retailers located in San Diego and other southern California cities, and their principals. The complaint alleged that they sold flavored tobacco products in violation of state and municipal law prohibiting sale of such products, H&S 104559.5, San Diego Municipal Code 42.1603, and that this unlawful conduct also violates California’s Unfair Competition Law, B&P 17200. At one of the stores, after selling a product to an investigator, a clerk asked the investigator to conceal the product in a bag when leaving the store because selling it was illegal.
People v Payless Smoke Shop Inc. Superior Court, County of San Diego, 37-2023-362243, complaint
The complaint alleged that they sold flavored tobacco products in violation of state and municipal law prohibiting sale of such products, H&S 104559.5, San Diego Municipal Code 42.1603, and that this unlawful conduct also violates California’s Unfair Competition Law, B&P 17200. At one of the stores, after selling a product to an investigator, a clerk asked the investigator to conceal the product in a bag when leaving the store because selling it was illegal.