Ohio Court Sides with Vape Retailer, Says Only FDA Can Enforce Federal Tobacco Rules

An Ohio appellate court just handed a small but important win to vape retailers — ruling that only the federal government can enforce FDA tobacco product rules, not state attorneys general. 

In State ex rel. Attorney Gen. Dave Yost v. Central Tobacco & Stuff Inc., 2025-Ohio-4613, the court affirmed the dismissal of a case brought by the Ohio Attorney General against Central Tobacco, an e-cigarette retailer accused of selling products without FDA premarket authorization. 

The Attorney General had argued that Central Tobacco’s sales violated both federal law and Ohio’s Consumer Sales Practices Act (CSPA) because the store allegedly failed to disclose that its e-cigarettes lacked FDA approval. 

But the court disagreed — and its reasoning could have implications far beyond Ohio. 

What the Court Said 

The court found that the Ohio AG’s claims were “impliedly preempted” by federal law. In plain terms, the judges said that: 

“Only the federal government can enforce the FDCA’s requirements for tobacco products. If a state law claim would not exist but for the FDCA, it is impliedly preempted.” 

The decision leans heavily on U.S. Supreme Court precedent (Buckman Co. v. Plaintiffs’ Legal Committee) and Sixth Circuit case law (Loreto v. Procter & Gamble Co.). Together, those rulings make clear that the Federal Food, Drug, and Cosmetic Act (FDCA) — which gives the FDA authority over tobacco products — can’t be privately or locally enforced. 

In other words, the FDA sets the national standard, and it’s up to the FDA (not state AGs or private plaintiffs) to enforce it. 

Why It Matters 

This case marks one of the first attempts by a state to use its consumer protection law to enforce FDA premarket tobacco regulations. That’s a creative legal strategy — but the Ohio appellate court said it went too far. 

According to the court, any claim that depends entirely on whether a product has FDA authorization falls squarely under federal jurisdiction, and therefore, states can’t enforce it. 

The court also rejected the AG’s arguments about product labeling. The label “Sale only allowed in the United States” is federally required for all tobacco products, so it couldn’t be used to suggest the product was being deceptively marketed as “legal.” 

The Dissent 

Not everyone on the court agreed. Judge King dissented, arguing that the state’s action wasn’t about enforcing the FDCA, but about protecting consumers from deceptive sales practices — something the FDCA doesn’t preempt. 

King emphasized that the FDCA’s savings clause allows states to regulate tobacco sales and distribution, and pointed to other federal cases recognizing states’ broad powers to police unfair or deceptive conduct. 

The Bigger Picture 

While this is only an Ohio appellate decision, it could influence how other states approach similar cases. Attorneys general across the country have recently been exploring ways to use state consumer protection laws to go after vape and tobacco companies for alleged FDA violations. 

The Ohio ruling draws a bright line: 

If a case is based solely on whether a product has FDA authorization, that’s federal territory — not something states can police under consumer laws. 

For vape and tobacco retailers, the decision offers a bit of breathing room. It reinforces the idea that federal rules are enforced federally, and helps clarify where state powers end when it comes to FDA-regulated products. 

In short: 
This isn’t a nationwide ruling yet, but it’s a promising development for the industry. The takeaway? States can regulate how products are sold, but not whether they meet FDA authorization — that’s the FDA’s job.