Fifth Circuit Denies Injunction in Challenge to Mississippi's Ban on Non-FDA-Approved Vape Products
Fifth Circuit denied an injunction pending appeal in a challenge to Mississippi's ban on non-FDA-approved vape products, ruling plaintiffs lacked Article III standing. The court rejected their 'generalized theory of constitutional injury.'
The U.S. Court of Appeals for the Fifth Circuit denied a motion for an injunction pending appeal filed by retailers, distributors, and related trade associations of vape products in Mississippi to prevent enforcement of a recently passed law restricting sale of products not approved by the federal FDA, ruling that the group failed to articulate a cognizable injury to merit Article III standing (Vapor Technology Association v. Graham, Nos. 25-60694 and 26-60013 (5th Cir. Feb. 11, 2026)).
H.B. 916 was signed into law in Mississippi in March 2025, mandating that the state's commissioner of revenue keep a directory of those electronic nicotine devices that the federal FDA had approved. Consequently, products not listed in the directory could not be sold in the state. Additionally, the statute required manufacturers to certify that they had received FDA approval. Parties who violate the law are subject to both civil and criminal penalties.
A group of industry trade associations, a distributor, and several retailers filed a lawsuit in federal court against the state commissioner asserting that the law violated their constitutional rights, interferes with the FDA's regulation of these devices, and is preempted by federal law. The group also filed a motion for a temporary restraining order and preliminary injunction to prevent enforcement of the statute while pursuing their lawsuit against the state government. The district court ordered briefing on Article III standing but denied the motion for injunctive relief upon the group's failure to present a legally cognizable injury. The group filed the present appeal.
The appellate panel explained that the group must show a strong likelihood of success on the merits in order to prevail in pursuit of the injunction, and that standing is a prerequisite thereto. Further, standing requires an "injury in fact," but the group failed to do so in the present appeal. First, the group did not argue that they would incur financial injury as they had done in their motion to the lower court, thereby forfeiting the argument. Second, the group asserted that their legally protected interest was "in enforcing the Constitution" on the basis that Mississippi's H.B. 916 violates federal law, a theory that derives from the Supremacy Clause to invoke the federal preemption doctrine.
The appellate panel acknowledged that constitutional injuries can create standing; however, they must be "concrete and particularized" and "must belong to the plaintiff, not the public at large." Accordingly, the group's arguments on appeal did not include any particularized constitutional injury, which U.S. Supreme Court precedent weighs strongly against. The panel further found that the federal prohibitions vis-à-vis electronic nicotine devices and products color the group's purported "individualized harm" as a general disagreement with the state law. Because the group did not articulate anything beyond a "generalized theory of constitutional injury," they did not establish the necessary standing to permit enjoining enforcement of H.B. 916. Therefore, the motion for injunction pending appeal was denied.