In Spencer v. Vapor Technology Association, 2026 WL 1902082 (July 2, 2026), the Court (Sellers, J.; Stewart, C.J., Wise, Bryan, Menheim, and McCool, JJ., concurring; Cook, J., concurring in part and concurring in the result, with opinion; Shaw, J., concurring in the result; and Parker, J., recusing) affirmed the Montgomery Circuit Court’s denial of a preliminary injunction of Alabama laws regulating vaping products, holding that the plaintiffs failed to demonstrate a reasonable likelihood of success on their constitutional challenges.
Vapor Technology Association and Southside Vape, LLC sued several Alabama officials, seeking a temporary restraining order (“TRO”) and a preliminary injunction enjoining enforcement of Act No. 2025-403 (“the Act”), which regulates the sale of electronic nicotine delivery systems (“ENDS”) or e-liquids, commonly known as “electronic cigarettes,” “e-cigarettes,” or “vapes.” Id. at *1. The Act created an ENDS Product Directory and imposed certification requirements, restrictions, and penalties governing which vaping products could be sold in Alabama, including restrictions on foreign-made products. Id. at *2. Although the Montgomery Circuit Court initially issued a temporary restraining order, it later denied the plaintiffs’ request for a preliminary injunction while maintaining the TRO during the appeals. Id. at *1.
The Court first rejects the State defendants’ argument that the plaintiffs lacked standing, finding a concrete injury-in-fact existed because enforcement could cause lost profits, employee losses, business closures, fines, product seizures, and other penalties, and such injuries flowed directly from enforcement and could be redressed by a favorable ruling. Id. at *3. On the merits of the constitutional arguments, however, the Court concludes that the plaintiffs had not shown a reasonable likelihood of success on their implied-preemption claim. The Court reasons that although federal law gives the FDA substantial authority over tobacco products, the Tobacco Control Act expressly preserves significant state authority to regulate the sale and distribution of tobacco products, and Alabama’s restrictions concerned sales—an area Congress preserved for state regulation—and therefore did not impermissibly conflict with the federal regulatory scheme. Id. at *4.
The Court likewise rejects the plaintiffs’ dormant Commerce Clause challenge to Alabama’s restrictions on foreign-made vaping products. While acknowledging that the Act discriminates against foreign trade, the Court concludes that Alabama had articulated a legitimate, non-protectionist purpose: protecting the health and safety of Alabama residents, particularly youth, from potentially harmful vaping products. Id. at *5. The Court characterizes the legislation as a permissible exercise of Alabama’s traditional police powers rather than economic protectionism. Id. *6. Because the plaintiffs failed to demonstrate a reasonable likelihood of success on either constitutional claim—and therefore could not satisfy the requirements for preliminary injunctive relief—the Court affirms the circuit court’s order denying the preliminary injunction in both consolidated appeals.