Rel: July 2, 2026
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA SPECIAL TERM, 2026
_________________________
SC-2025-0800 _________________________
Col. Alan Spencer, in his official capacity as Chairman of the Alabama Alcoholic Beverage Control Board; Melissa Morrissette, in her official capacity as a member of the Alabama Alcoholic Beverage Control Board; John Knight, in his official capacity as a member of the Alabama Alcoholic Beverage Control Board; Hal Taylor, in his official capacity as Secretary of the Alabama Law Enforcement Agency; Chris Inabinett, in his official capacity as Director of the State Bureau of Investigation; and Mary Martin Mitchell, in her official capacity as Commissioner of the Alabama Department of Revenue
v.
Vapor Technology Association and Southside Vape, LLC SC-2025-0800 and SC-2025-0833
Appeal from Montgomery Circuit Court (CV-25-901284)
SC-2025-0833 _________________________
Vapor Technology Association and Southside Vape, LLC
Col. Alan Spencer, in his official capacity as Chairman of the Alabama Alcoholic Beverage Control Board; Melissa Morrissette, in her official capacity as a member of the Alabama Alcoholic Beverage Control Board; John Knight, in his official capacity as a member of the Alabama Alcoholic Beverage Control Board; Hal Taylor, in his official capacity as Secretary of the Alabama Law Enforcement Agency; Chris Inabinett, in his official capacity as Director of the State Bureau of Investigation; and Mary Martin Mitchell, in her official capacity as Commissioner of the Alabama Department of Revenue
SELLERS, Justice.
These consolidated appeals involve the constitutionality of Act No.
2025-403, Ala. Acts 2025, codified within Title 28, Chapter 11, Ala. Code
1975 ("the Alabama Act"). The Alabama Act, effective June 1, 2025,
regulates the sale of electronic nicotine delivery systems ("ENDS") or e-
2 SC-2025-0800 and SC-2025-0833
liquids, commonly referred to as "electronic cigarettes," "e-cigarettes," or
"vapes."1 In August 2025, Vapor Technology Association and Southside
Vape, LLC ("the plaintiffs"),2 commenced an action in the Montgomery
Circuit Court ("the trial court") against six State defendants in their
official capacities ("the State defendants"),3 seeking a temporary
restraining order ("TRO") and a preliminary injunction enjoining
enforcement of the Alabama Act. The trial court entered a TRO in favor
1Section 28-11-17.2(a)(1), Ala. Code 1975, defines ENDS as "battery-powered devices that use a heating mechanism to vaporize a mixture containing nicotine or other chemicals with the intent that the vapor be inhaled."
2Southside Vape, LLC, is an Alabama small business that operates
specialty vape shops throughout south Alabama. Vapor Technology Association is a vapor-product-industry trade association; its members include businesses in every sector of the ENDS industry, i.e., manufacturers, distributors, wholesalers, suppliers, and retailers, as well as individual consumers of ENDS.
3The State defendants are Col. Alan Spencer, in his official capacity
as Chairman of the Alabama Alcoholic Beverage Control Board; Melissa Morrissette, in her official capacity as a member of the Alabama Alcoholic Beverage Control Board; John Knight, in his official capacity as a member of the Alabama Alcoholic Beverage Control Board; Hal Taylor, in his official capacity as Secretary of the Alabama Law Enforcement Agency; Chris Inabinett, in his official capacity as Director of the State Bureau of Investigation; and Mary Martin Mitchell, in her official capacity as Commissioner of the Alabama Department of Revenue. Mitchell was automatically substituted for former commissioner Vernon Barnett. See Rule 43(b), Ala. R. App. P. 3 SC-2025-0800 and SC-2025-0833
of the plaintiffs, finding that they were likely to suffer immediate and
irreparable harm if the Alabama Act was not enjoined and that their
losses could not be compensated through money damages because the
State defendants are entitled to State, or sovereign, immunity. On
October 16, 2025, following a hearing, the trial court entered an order
denying the plaintiffs' motion for a preliminary injunction. However,
pursuant to Rule 62(c), Ala. R. Civ. P., the trial court extended its
previously issued TRO pending the resolution of these appeals.4 In
appeal no. SC-2025-0800, the State defendants appeal from the trial
court's order insofar as it enjoins certain provisions of the Alabama Act,
specifically challenging the plaintiffs' standing. In appeal no. SC-2025-
0833, the plaintiffs cross-appeal from the same order insofar as it denies
their motion for a preliminary injunction. For the reasons stated herein,
we affirm.
I. Federal Statutory Background
4The TRO enjoined enforcement of Ala. Code 1975, §§ 28-11-7.1, 28-
11-17 (enacted in 2019), 28-11-17.1(a), (b), (c), (d), (f), and (h), and 28- 11.17.2. 4 SC-2025-0800 and SC-2025-0833
In 2009, Congress enacted the Family Smoking Prevention and
Tobacco Control Act ("the TCA"), codified at 21 U.S.C. § 387 et seq., which
granted the Food and Drug Administration ("the FDA") authority to
"regulate the manufacturing, marketing, sale, and distribution of tobacco
products" under the Food, Drug, and Cosmetics Act ("the FDCA"), 21
U.S.C. § 301 et seq. Food & Drug Admin. v. Wages & White Lion Invs.,
L.L.C., 604 U.S. 542, 551 (2025). Under the TCA, a "new tobacco product"
may not be marketed in interstate commerce unless the manufacturer
obtains a premarket authorization from the FDA. 21 U.S.C. § 387j(a)(1)-
(2). A new tobacco product is one that was "not marketed in the United
States before February 15, 2007." Wages & White Lion, 604 U.S. at 551.
In 2016, the FDA issued a rule deeming ENDS to be tobacco products
subject to the TCA's premarket-authorization regime. 21 U.S.C. §
387j(a)(1)(A). "[B]ecause those products had not received premarket
authorization, the effect of the rule was to make their continued sale
illegal," and companies that "proceeded to sell their products without
such authorization would be subject to stiff penalties." Wages & White
Lion, 604 U.S. at 555. To give manufacturers "adequate time to apply for
'premarket' authorization, the FDA delayed enforcement for two to three
5 SC-2025-0800 and SC-2025-0833
years." Id. Since September 2021, the FDA has made enforcement
decisions regarding unauthorized ENDS on a case-by-case basis. In May
2026, while these appeals were pending, the FDA issued its final
guidance, describing how the agency intends to prioritize enforcement for
certain unauthorized ENDS and oral nicotine-pouch products that do not
have premarket authorization. See FDA Notice, 91 Fed. Reg. 25892,
25893 (May 12, 2026) -- Enforcement Priorities for Certain New Tobacco
Products Marketed Without Premarket Authorization (Guidance for
Industry, Docket No. FDA-2026-D-5083, May 12, 2026) ("We made this
determination because this guidance is necessary to promote
transparency, and to assist FDA in efficiently allocating enforcement
resources by focusing regulatory oversight on products that are more
likely to meet the applicable public health standard.").
II. The Alabama Act
Because of the delay on the part of the FDA in effectively regulating
ENDS and based upon a finding that ENDS were "inherently harmful,"
and "highly addictive," the Alabama Act aimed to further regulate the
sale of ENDS in this State. See Ala. Code 1975, § 28-11-17.2(a)(1)e. ("The
FDA has largely been silent in its role as industry regulator, and has not
6 SC-2025-0800 and SC-2025-0833
acted to remove unlawful vaping products from the shelves of retailers,
nor has it acted to properly approve or disapprove vaping products for
retail sale in the United States."), and § 28-11-17.2(a)(2) ("[T]he
Legislature declares that the health, safety, and welfare of the residents
of the State of Alabama require[] that until the FDA begins to effectively
regulate vaping products in the United States, this state must restrict
and prohibit the sale of foreign vaping products.").
The plaintiffs challenge § 28-11-17, Ala. Code 1975, enacted before
the Alabama Act in 2019, which makes it a class C misdemeanor to
"distribute, sell, or offer for sale any [ENDS] or alternative nicotine
products that cannot be legally marketed under federal law or FDA rule,
regulation, or guidance." They also challenge certain subsections of §
28-11-17.1, Ala. Code 1975, that, in relevant part, regulate the sale of
ENDS by establishing an ENDS Product Directory ("the Directory"),
which is an online list of approved products that can be legally sold in the
state. Section 28-11-17.1 is composed of three parts. The first part,
concerning certification requirements, provides, in relevant part, that,
beginning October 1, 2025, "every e-liquid manufacturer and
manufacturer of alternative nicotine products whose products are sold in
7 SC-2025-0800 and SC-2025-0833
this state" must submit to the Alabama Department of Revenue a
certification that its product is compliant with federal law. § 28-11-
17.1(a)(1). The second part of the statute primarily sets forth the revenue
commissioner's duties regarding the Directory and establishes set fees
associated with offsetting the costs of processing certifications and
operating the Directory. The third part, concerning violations and
penalties, establishes severe financial and administrative penalties for
businesses that stock or sell ENDS products not listed on the Directory.
Finally, the plaintiffs challenge § 28-11-17.2(b), which, in relevant part,
provides that, beginning October 1, 2025, "no e-liquid, [ENDS], or
alternative nicotine product may be added to the [ENDS] Directory
maintained by the Department of Revenue pursuant to Section 28-11-
17.1," unless either of the following apply: "(1) [t]he product and its
components are made, packaged, labeled, and manufactured in the
United States" or "(2) [t]he manufacturer of the product has received a
marketing order or other authorization under 21 U.S.C. § 387j(c)(1)(A)(i)
authorizing the product to be introduced or delivered for introduction into
interstate commerce."
III. Appeal No. SC-2025-0800 -- Standing
8 SC-2025-0800 and SC-2025-0833
We first address the State defendants' argument that the plaintiffs
lack standing to challenge the Alabama Act on constitutional grounds.
To establish standing, a plaintiff must demonstrate (1) an injury in fact,
(2) causation, and (3) redressability. Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992). An injury in fact requires the invasion of a
legally cognizable interest that is concrete, particularized, and actual or
imminent, and not conjectural or hypothetical. Id. The plaintiffs have
easily satisfied the injury-in-fact prong because, as the trial court
properly concluded, enforcement of the Alabama Act will cause them to
suffer lost profits, lost employees, and the potential closing of their
businesses. In addition, the Alabama Act further provides that the sale
of ENDS not listed on the Directory are prohibited and that businesses
that sell or stock prohibited ENDS may be punished with stiff penalties
and fines, including having their products declared as contraband and
seized by law enforcement. See § 28-11-17.1. These types of injuries
readily qualify as concrete injuries. See TransUnion LLC v. Ramirez,
594 U.S. 413, 425 (2021) (noting that tangible harms such as monetary
harms readily qualify as concrete injuries), and Alabama Alcoholic
Beverage Control Bd. v. Henri-Duval Winery, L.L.C., 890 So. 2d 70, 75 9 SC-2025-0800 and SC-2025-0833
(Ala. 2003) (holding that a plaintiff had standing to challenge an act's
constitutionality when the act negatively impacted him and his
business). Next, the plaintiffs' asserted injuries are not hypothetical;
rather, they flow directly from enforcement of the Alabama Act; thus, the
causation prong is also satisfied. Finally, redressability "depends on the
relief requested, not the relief to which a plaintiff can prove it is entitled
on the merits." Wisconsinites for Alternatives to Smoking & Tobacco, Inc.
v. Casey, 172 F.4th 976, 983 (7th Cir. 2026). If the Alabama Act is found
unconstitutional, as the plaintiffs allege, then their injuries would be
remedied because they could continue to sell their products without
interference by the State defendants and the fear of reprisal. See id. ("A
decision for Wisconsinites would provide a remedy because they could sell
and access ENDS products without fear of adverse action. Because the
alleged harms would flow directly from enforcing [the Wisconsin Act],
and are redressable by the requested relief, Wisconsinites have alleged
and established a concrete harm sufficient for Article III standing.").
10 SC-2025-0800 and SC-2025-0833
Based on the foregoing, we conclude that the plaintiffs have standing to
challenge the constitutionality of Alabama Act.5 Lujan.
IV. Appeal No. SC-2025-0833 -- Preliminary Injunction
The plaintiffs argue that the trial court erred in denying their
motion for a preliminary injunction.
"A party seeking a preliminary injunction must demonstrate (1) that the party would suffer irreparable harm without the injunction, (2) that the party has no adequate remedy at law, (3) that the party has at least a reasonable chance of success on the ultimate merits of the case, and (4) that the hardship that the injunction will impose on the opposing party will not unreasonably outweigh the benefit accruing to the party seeking the injunction. Holiday Isle,
5We reject the State defendants' argument that the plaintiffs lack
standing because, they say, the plaintiffs' conduct will remain illegal regardless of the outcome of this case. Although the plaintiffs may be violating the Alabama Act by selling illegal ENDS, their standing stems from an injury that will result from the enforcement of the Alabama Act, not the illegality of present or past sales. See Wisconsinites for Alternatives to Smoking & Tobacco, Inc. v. Casey, 172 F.4th 976, 982 (7th Cir. 2026) (rejecting the Department of Revenue's argument that the plaintiffs lacked standing because "their conduct would be illegal, regardless of this case's outcome"), and Iowans for Alternatives to Smoking & Tobacco, Inc. v. Iowa Dep't of Revenue, 781 F. Supp. 3d 724, 734 (S.D. Iowa 2025) ("The appropriate inquiry focuses not on whether Plaintiffs' activities fully comply with federal law, but on whether they have alleged a concrete injury that could be redressed by a favorable decision," and "[a] rule that denies standing to Plaintiffs based solely on imperfect compliance with federal law would create an anomalous result: states could evade preemption challenges by simply asserting a plaintiff's noncompliance with the very federal standards at issue. Such circularity finds no support in our federalist structure."). 11 SC-2025-0800 and SC-2025-0833
LLC v. Adkins, 12 So. 3d 1173, 1176 (Ala. 2008). Generally, ' "[t]he decision to grant or to deny a preliminary injunction is within the trial court's sound discretion. In reviewing an order granting [or denying] a preliminary injunction, the Court determines whether the trial court exceeded that discretion." ' Holiday Isle, 12 So. 3d at 1175-76 (quoting SouthTrust Bank of Alabama, N.A. v. Webb-Stiles Co., 931 So. 2d 706, 709 (Ala. 2005)). We review the legal rulings of the trial court, to the extent they resolve questions of law based on undisputed facts, de novo. Id. at 1176."
Bethel v. Franklin, 381 So. 3d 1121, 1126 (Ala. 2023).
The trial court concluded that the plaintiffs will suffer irreparable
harm without an injunction based on the economic harm they will incur
if the Alabama Act is enforced. The trial court further found that the
plaintiffs have no adequate remedy at law because their injuries cannot
be remedied through an award of money damages, specifically because
the State defendants would be entitled to State, or sovereign, immunity.
Thus, the trial court presumably denied the injunction on the basis that
the plaintiffs do not have a reasonable chance of success on the ultimate
merits of their constitutional arguments. We, therefore, address the
merits of their constitutional arguments.
A. Implied Preemption
The Supremacy Clause of the United States Constitution
establishes that the Constitution, federal laws, and treaties constitute 12 SC-2025-0800 and SC-2025-0833
the "the supreme Law of the Land." U.S. Const., Art. VI, cl. 2. The clause
provides Congress the power to preempt state law. Where, as here,
implied preemption is alleged, we must determine whether compliance
with both state and federal law is impossible, specifically asking whether
"the state law stands as an obstacle to the accomplishment of the full
purposes and objectives of Congress." Silkwood v. Kerr-McGee Corp., 464
U.S. 238, 248 (1984). If the state law would "prevent or frustrate" federal
objectives, it is "nullified" by the Supremacy Clause. Geier v. American
Honda Motor Co., 529 U.S. 861, 873 (2000). Here, the plaintiffs contend
that the Alabama Act is impliedly preempted by 21 U.S.C. § 337(a) of the
FDCA, which provides that all proceedings to enforce or restrain
violations of the FDCA "shall be by and in the name of the United States."
See Buckman Co. v. Plaintiff's Legal Comm., 531 U.S. 341, 352 (2001)
(noting that § 337(a) is "clear evidence that Congress intended that the
[Medical Device Amendment] be enforced exclusively by the Federal
Government"). The plaintiffs argue that the Alabama Act is impliedly
preempted by § 337(a) because, they say, under the Alabama Act, the
State must decide whether an ENDS has a marketing order under the
FDA or falls under the FDA's deferred-enforcement policy and, if not,
13 SC-2025-0800 and SC-2025-0833
whether and when to seek civil or criminal penalties against the
purported offenders. According to the plaintiffs, this enforcement regime
effectively transfers the FDA's complete enforcement discretion under §
337(a) to the State and allows the State defendants to make enforcement
decisions that only the FDA can make.
Because the plaintiffs' claims implicate tobacco regulation, an area
that the States have traditionally occupied, this Court starts with the
" 'assumption that the historic police powers of the States were not to be
superseded by the Federal Act unless that was the clear and manifest
purpose of Congress.' " New York State Conf. of Blue Cross & Blue Shield
Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995) (quoting Rice v.
Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). The plaintiffs rely
heavily on the language of § 337(a) providing that all proceedings to
enforce or restrain violations of the FDCA "shall be by and in the name
of the United States." See Buckman, supra. However, in 2009, when
Congress amended the FDCA through the TCA, it expressly sought to
address the legality of state regulation of tobacco products through a
carefully balanced preemption scheme consisting of a preservation
14 SC-2025-0800 and SC-2025-0833
clause, a preemption clause, and a savings clause. See 21 U.S.C. § 387p.
The preservation clause provides, in relevant part:
"Except as provided in paragraph (2)(A), nothing in [the TCA] … shall be construed to limit the authority of a … State … to enact, adopt, promulgate, and enforce any law, rule, regulation, or other measure with respect to tobacco products that is in addition to, or more stringent than, requirements established under [the TCA] … relating to or prohibiting the sale, distribution, possession, exposure to, access to, advertising and promotion of, or use of tobacco products by individuals of any age, [or] information reporting to the State …."
21 U.S.C. § 387p(a)(1) (emphasis added).
The preemption clause, in turn, provides, in relevant part:
"No State … may establish or continue in effect with respect to a tobacco product any requirement which is different from, or in addition to, any requirement under the provisions of [the TCA] relating to tobacco product standards, premarket review, adulteration, misbranding, labeling, registration, good manufacturing standards, or modified risk tobacco products."
21 U.S.C. § 387p(a)(2)(A) (emphasis added).
Finally, the savings clause, which is an exception to the preemption
clause, provides, in relevant part:
"Subparagraph (A) does not apply to requirements relating to the sale, distribution, possession, information reporting to the State, exposure to, access to, the advertising and promotion of, or use of, tobacco products by individuals of
15 SC-2025-0800 and SC-2025-0833
any age, or relating to fire safety standards for tobacco products."
21 U.S.C. § 387p(a)(2)(B) (emphasis added).
In summary, the preservation clause reserves power in the States
to regulate the sale, distribution, possession, or use of tobacco products
more stringently than those products are regulated under the federal
requirements. It is under the preservation clause that states retain
broad power to regulate, and even ban, the sale of tobacco products. See
R.J. Reynolds Tobacco Co. v. County of Los Angeles, 29 F.4th 542, 560
(9th Cir. 2022). The preemption clause, in turn, carves out eight
categories that are preempted, none of which apply to the sale of tobacco
products. Finally, the savings clause protects the regulation of tobacco
"sale[s]" and "distribution" from preemption. Thus, like other courts, we
conclude that the inclusion of the preservation and savings clauses in §
387p was an intentional choice on the part of Congress to preserve for the
states their traditional role relating to the regulation, sale, and
distribution of tobacco products.6 See Wisconsinites, 172 F. 4th at 986
6While we recognize that some courts have applied the principles in
Buckman Co. v. Plaintiffs' Legal Committee, 531 U.S. 341 (2001), to hold that state claims incorporating the FDCA are preempted, we find that case distinguishable. In Buckman, the United States Supreme Court 16 SC-2025-0800 and SC-2025-0833
("[T]he TCA creates a tripartite preemption structure," and "[t]he
preservation clause's text shows Congress's decision to reserve the states'
power to regulate tobacco 'in addition to, or more stringent than' the
[TCA's] requirements '[e]xcept as provided in [the preemption clause].' 21
U.S.C. § 387p(a)(1)."); R.J. Reynolds Tobacco Co. v. City of Edina, 60
F.4th 1170, 1178 (8th Cir. 2023) ("Although the TCA does grant the FDA
exclusive authority to promulgate tobacco manufacturing standards,
Section 387p can be plausibly interpreted as preserving state laws that
relate to manufacturing, so long as they also relate to the sale of
tobacco."); R.J. Reynolds Tobacco Co. v. County of Los Angeles, 29 F.4th
at 555 ("In short, the TCA's text sandwiches limited production and
marketing categories of preemption between clauses broadly preserving
and saving local authority, including any 'requirements relating to the
sale' of tobacco products. This unique 'preservation sandwich' enveloping
the TCA's preemption clause reveals a careful balance of power between
federal authority and state, local, and tribal authority, whereby Congress
considered whether state-law claims of fraud on the FDA conflicted with the FDA's responsibility to police fraud. Thus, Buckman did not involve tobacco regulation, an area traditionally reserved for the states; nor was there any analysis in that case regarding the effect of the preservation and savings clauses of § 387p. 17 SC-2025-0800 and SC-2025-0833
has allowed the federal government to set the standards regarding how
a product would be manufactured and marketed, but has left states,
localities, and tribal entities the ability to restrict or opt out of that
market altogether."); and U.S. Smokeless Tobacco Mfg. Co. v. City of New
York, 708 F.3d 428, 436 (2d Cir. 2013) ("[G]iven Congress's explicit
decision to preserve for the states a robust role in regulating, and even
banning, sales of tobacco products, we adopt a broad reading of the saving
clause and a limited view of the kinds of restrictions that would
constitute a ban and require us to address the permissibility of outright
prohibitions under the saving clause."). As noted in Wisconsinites, a
state law "that mirrors a federal standard does not create a conflict;
rather they impose the same standards," and there is no implied
preemption "if there is no conflict." 172 F.4th at 988. Based on the
foregoing, we conclude that the plaintiffs have failed to demonstrate a
reasonable likelihood of success on the merits of their implied-
preemption claim.
B. Dormant Commerce Clause
The Commerce Clause grants Congress the power "[t]o regulate
Commerce with foreign Nations, and among the several States, and with
18 SC-2025-0800 and SC-2025-0833
Indian Tribes." U.S. Const., Art. I, § 8, cl. 3. The Commerce Clause
includes not only an affirmative authorization for Congress to regulate
interstate commerce, but also a corresponding restraint on the power of
state governments or municipalities to regulate that commerce. Campus
Crest at Tuscaloosa LLC v. City of Tuscaloosa, [SC-2025-0020, Oct. 3,
2025] ___ So. 3d ___ (Ala. 2025). That restraint is referred to as the
dormant Commerce Clause. Id. The plaintiffs argue that § 28-11-
17.2(b)(1) and (2) of the Alabama Act facially discriminates against
foreign commerce. Those subsections restrict the addition of any foreign-
made products to the Directory unless "(1) [t]he product and its
components are made, packaged, labeled, and manufactured in the
United States" or "(2) [t]he manufacturer of the product has received a
marketing order or other authorization under 21 U.S.C. § 387j(c)(1)(A)(i)
authorizing the product to be introduced or delivered for introduction into
interstate commerce." The regulation of foreign commerce is typically
the province of the federal government and not of the several states;
however, when an act facially discriminates against foreign commerce,
states are permitted to discriminate only if they have a legitimate, and
not pretextual, reason to justify, and can proffer a rationale for, such
19 SC-2025-0800 and SC-2025-0833
discrimination. See Maine v. Taylor, 477 U.S. 131, 140 (1986) (A statute
that facially discriminates against foreign commerce can be overcome
only by a showing that the statute serves a "legitimate local purpose, and
the purpose must be one that cannot be served as well by available
nondiscriminatory means."). See also Fort Gratiot Sanitary Landfill, Inc.
v. Michigan Dep't of Nat. Res., 504 U.S. 353, 366 (1992) (recognizing, for
Commerce Clause purposes, the "difference between economic
protectionism, on the one hand, and health and safety regulation, on the
other"). In Maine, the United States Supreme Court examined a Maine
statute that restricted interstate trade in the "most direct manner
possible, blocking all inward shipments of live baitfish at the State's
border." 477 U.S. at 137. As the Supreme Court explained:
"It is well established that Congress may authorize the States to engage in regulation that the Commerce Clause would otherwise forbid. See, e.g., Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 769 (1945). But because of the important role the Commerce Clause plays in protecting the free flow of interstate trade, this Court has exempted state statutes from the implied limitations of the Clause only when the congressional direction to do so has been 'unmistakably clear.' South-Central Timber Development, Inc. v. Wunnicke, 467 U.S. 82, 91 (1984). …"
______________________________________
20 SC-2025-0800 and SC-2025-0833
"The Commerce Clause significantly limits the ability of States and localities to regulate or otherwise burden the flow of interstate commerce, but it does not elevate free trade above all other values. As long as a State does not needlessly obstruct interstate trade or attempt to 'place itself in a position of economic isolation,' Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 527 (1935), it retains broad regulatory authority to protect the health and safety of its citizens and the integrity of its natural resources. The evidence in this case amply supports the District Court's findings that Maine's ban on the importation of live baitfish serves legitimate local purposes that could not adequately be served by available nondiscriminatory alternatives. This is not a case of arbitrary discrimination against interstate commerce; the record suggests that Maine has legitimate reasons, 'apart from their origin, to treat [out-of-state baitfish] differently,' Philadelphia v. New Jersey, 437 U.S. [617,] 627 [(1978)]."
Id. at 138-39 and 151-52.
Likewise, here, even though the Alabama Act clearly discriminates
against foreign trade, the State defendants have offered a compelling
reason to substantiate that the Alabama Act's restriction serves a
legitimate state purpose aimed directly at protecting the health and
safety of the citizens of this State and is not a measure to protect, benefit,
or favor the State's economy at the expense of international or interstate
trade. Specifically, the declarations of the Legislature regarding the
prohibition on the sale of foreign products make clear that the prohibition
is not arbitrarily discriminatory or a pretextual obstruction to favor
21 SC-2025-0800 and SC-2025-0833
Alabama businesses. Rather, the prohibition serves a legitimate local
purpose related to the health and safety of this State's citizens, including
its youth, which cannot be served by available nondiscriminatory
alternatives. Section 25-11-17.2, regarding the restriction on the sale of
foreign-made ENDS, provides, in pertinent part:
"(a)(1) The Legislature finds and declares the following:
"a. [ENDS], commonly called electronic cigarettes or e-cigarettes, or simply 'vapes,' are battery-powered devices that use a heating mechanism to vaporize a mixture containing nicotine or other chemicals with the intent that the vapor be inhaled.
"b. E-cigarettes are inherently harmful. The main ingredient, nicotine, is highly addictive, and the amounts of nicotine are largely unregulated. A single e-cigarette can have as much nicotine as hundreds of traditional cigarettes. Scientific studies have shown that the most commonly used organic solvent of e-cigarette oil, propylene glycol, has been shown to form carcinogens including formaldehyde when oxidized. The components of e- cigarettes contain varying amounts of carcinogenic metals, the most common of which are chromium, nickel, and aluminum which, when heated, can be released into the device and enter the user's body.
"c. E-liquids manufactured in foreign countries are notorious for being manufactured with pesticide-grade nicotine, industrial propylene glycol, and other highly harmful chemicals to the human body. There have been numerous reports of 22 SC-2025-0800 and SC-2025-0833
these foreign products being fraudulently labeled to bypass customs enforcement and regulators.
"d. There are thousands of different types of e-cigarettes and varying e-liquids sold in the United States today, but only an extremely small fraction of this amount has actually received approval from the federal [FDA].
"e. The FDA has largely been silent in its role as industry regulator, and has not acted to remove unlawful vaping products from the shelves of retailers, nor has it acted to properly approve or disapprove vaping products for retail sale in the United States.
"(2) Based on the foregoing, the Legislature declares that the health, safety, and welfare of the residents of the State of Alabama requires that until the FDA begins to effectively regulate vaping products in the United States, this state must restrict and prohibit the sale of foreign vaping products."
(Emphasis added.)
This case is a prime example of a State's retention of authority
under its general police powers to regulate a matter of legitimate state-
wide concern, specifically the health and welfare of its citizens. Thus, the
Legislature in this case has not overstepped its role in regulating foreign
commerce; rather, it has declared a legitimate interest to protect the
State's citizens by regulating a potentially harmful product and by
restricting its sale and distribution. Accordingly, we conclude that the 23 SC-2025-0800 and SC-2025-0833
plaintiffs have failed to demonstrate a reasonable likelihood of success on
the merits of their dormant Commerce Clause claim.
V. Conclusion
The State defendants have failed to demonstrate that the plaintiffs
lacked standing. Nevertheless, the plaintiffs have failed to demonstrate
a reasonable likelihood of success on the merits of their constitutional
claims; thus, they have also failed to demonstrate that the balance of
harms and public interest weigh in favor of enjoining enforcement of the
Alabama Act. Bethel, supra. Accordingly, the order of trial court denying
the plaintiffs' motion for a preliminary injunction is affirmed.7
SC-2025-0800 -- AFFIRMED.
Stewart, C.J., and Wise, Bryan, Mendheim, and McCool, JJ.,
concur.
Cook, J., concurs in part and concurs in the result, with opinion.
Shaw, J., concurs in the result.
Parker, J., recuses himself.
7Because our resolution of the plaintiffs' appeal favors the State
defendants, we pretermit discussion of their argument relating to the trial court's alleged violation of Rule 65(c), Ala. R. Civ. P.
24 SC-2025-0800 and SC-2025-0833
SC-2025-0833 -- AFFIRMED.
Cook, J., concurs in part and concurs in the result, with opinion.
25 SC-2025-0800 and SC-2025-0833
COOK, Justice (concurring in part and concurring in the result).
I concur in the main opinion's preemption analysis which resolves
this appeal. However, I write separately to address the standing
requirement, which I believe presents a much closer question.
The facts here are unusual. The plaintiffs challenge only the state
law regulating the sale of ENDS while leaving unchallenged the federal
law that the state law substantively incorporates. Indeed, as noted below,
one of the plaintiffs here has affirmatively acknowledged in other federal
litigation that federal law prohibits it from selling the products it seeks
to sell.
Can a plaintiff challenge a state law on federal-preemption grounds
when the same plaintiff admits that federal law independently forbids
the conduct at issue? The answer is not obvious. Although I ultimately
conclude that the answer is probably yes under these particular facts, I
diverge from the main opinion's analysis for reaching this conclusion. For
that reason, I concur in the result with that part of the decision.
Federal Courts Have Reached Opposite Conclusions on this Question
I first note that federal courts across the country have begun
confronting this question in similar cases. However, their standing
26 SC-2025-0800 and SC-2025-0833
analyses have not been uniform.
On one side are federal courts in Iowa and Wisconsin, which have
held that challengers have standing to pursue such preemption claims.
In Wisconsinites for Alternatives to Smoking & Tobacco, Inc. v. Casey,
Case no. 25-cv-552-wmc, Sept. 5, 2025) (W.D. Wis. 2025) (not reported in
the Federal Supplement), aff'd, 172 F.4th 976 (7th Cir. 2026), the federal
district court found that the "plaintiffs have a legitimate basis for
believing that the FDA will continue its practice of allowing the ENDS
market to grow[]" and that, "under the FDA's current practice, plaintiffs
arguably are engaged in legal economic activities." Id. Those conclusions
were sufficient to establish standing.
Likewise, a federal district court in Iowa concluded that the state's
"legally protected interest" theory was "describing the need for a
'judicially cognizable interest,' not imposing a requirement that a
plaintiff's conduct comply with all aspects of federal law." Iowans for
Alternatives to Smoking & Tobacco, Inc. v. Iowa Dep't of Revenue, 781 F.
Supp. 3d 724, 734 (S.D. Iowa 2025). As a result, the federal district court
concluded that standing was established in that case.
However, other courts have reached the opposite conclusion. For
27 SC-2025-0800 and SC-2025-0833
example, in Mississippi, Vapor Technology Association -- one of the
plaintiffs now before us -- "concede[d] that the sale of ENDS products [is]
illegal under federal law." Vapor Tech. Ass'n v. Graham, CIVIL ACTION
NO. 1:25-cv-336-LG-BWR, Dec. 15, 2025) (S.D. Miss. 2025) (not reported
in the Federal Supplement). The federal district court there concluded
that enforcement of the state law "is an impediment to Plaintiffs' efforts
to continue to market and sell products that are illegal under federal
law." Id. It therefore determined that "there is no legally protected
interest to commit a crime." Id. In support of that conclusion, the court
relied on a Fifth Circuit Court of Appeals' decision reasoning that
" ' [ i]nterest in evading the law cannot create standing -- a plaintiff's
complaint that the defendant's actions will make his criminal activity
more difficult lacks standing because his interest is not legally
protected.' " Id. (quoting Bell v. Redflex Traffic Sys., Inc., 374 F. App'x
518, 520 (5th Cir. 2010)).
A federal district court in Kentucky agreed. It reasoned that "[t]he
selling of [ENDS] is, by the plain language of [the federal regulation],
unlawful conduct." Vapor Tech. Ass'n v. Taylor, CASE NO. 3:24-CV-74-
KKC, Jan. 30, 2025 (E.D. Ky. 2025) (footnote omitted) (not reported in
28 SC-2025-0800 and SC-2025-0833
the Federal Supplement). The federal district court also noted that
plaintiffs' counsel had conceded that " ' technically these [vapor] products
do not comply with the FDCA.' " Ultimately, the federal district court
concluded: "Put simply: they are illegal products" and " ' [t]his interest in
evading the law cannot create standing[.]' " Id. (quoting Initiative &
Referendum Inst. v. Walker, 450 F.3d 1082, 1093 (10th Cir. 2006)). It
then summarized its reasoning by quoting a well-respected treatise:
"A leading civil procedure treatise summarizes this issue well: 'Standing would not be recognized for a smuggler who asserted that his drug traffic was disrupted. Although the smuggler had been injured in fact, and the inspection procedures might indeed be unlawful, the asserted interest is not one the courts will protect.' 13A C. Wright, A. Miller, & E. Cooper, Fed. Prac. & Proc. Juris. § 3531.4 (3d ed. 2023) (footnote omitted)."
Id. (emphasis added).8
Why There Is Likely Standing In These Cases
As illustrated by the cases discussed above, standing is a close
question under federal law. Our decision on standing is a question of
Alabama law, but our caselaw has referenced federal law in determining
8In the present case, the State defendants also rely on a similar case
from our Court, State v. Epic Tech, LLC, 378 So. 3d 467, 486 (Ala. 2022), in which our Court held that "[t]he defendants have no right to engage in, and, thus, cannot be harmed by being enjoined from continuing in, an illegal enterprise." (Emphasis omitted.) 29 SC-2025-0800 and SC-2025-0833
standing. See Hanes v. Merrill, 384 So. 3d 616, 622-23 (Ala. 2023)(Cook,
J., concurring specially) (explaining that standing for cases in Alabama
courts is based upon the Alabama Constitution but noting that Alabama
caselaw has applied Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992),
and also emphasizing that our Court should examine the requirements
of standing anew rather than simply adopt the federal standard); and Ex
parte BAC Home Loans Servicing, LP, 159 So. 3d 31 (Ala. 2013)
(recognizing that, in Alabama, standing is a consideration in "public-law"
cases). Under these particular facts, I agree that standing likely exists
here for a few reasons.
First, the plaintiffs presumably could raise this same preemption
argument if the State initiated an enforcement action against them. And
it appears undisputed that such an enforcement action is substantially
certain to occur if the plaintiffs make sales of their products in Alabama.
Thus, I see little reason to deny the parties the opportunity to resolve the
issue through a preenforcement challenge.
Second, there may be a meaningful distinction between criminal
prohibitions and civil regulatory schemes. The cases denying standing
emphasize that no one has a legally protected interest in violating the
30 SC-2025-0800 and SC-2025-0833
law, specifically noting criminal laws (for instance, the drug-smuggling
example referenced in Vapor Tech. Ass'n v. Taylor, supra). But the
federal scheme at issue here primarily imposes civil penalties. Criminal
enforcement appears to be exceedingly rare, and it is not clear whether
it may require additional elements. These distinctions may matter.
Perhaps a plaintiff cannot establish standing to complain about state
action when the plaintiff's actions are a violation of a federal law with
criminal sanctions, yet the plaintiff may still possess a sufficient interest
when the relevant federal restrictions are enforced exclusively through
civil mechanisms. I do not need to decide that question today, and I
express no definitive view on it.
Third, it appears the federal government has intentionally delayed
any enforcement, and it is less than clear when future enforcement action
will occur at the federal level.
In sum, while I am willing to agree that the plaintiffs have standing
in these particular cases, I am reluctant to agree that the question of
standing to challenge a state law when the conduct is already prohibited
by a federal law is settled for future cases that might involve different
facts.