Wisconsin Vape Ban Lawsuit: WiscoFAST v. Casey Ruling and Enforcement

The Wisconsin vape ban lawsuit, Wisconsinites for Alternatives to Smoking and Tobacco, Inc. v. Casey, was filed in federal court in June 2025 by a coalition of vape shop owners, distributors, and consumers trying to block a state law that limits vape sales to products on a state-approved directory. They lost. A federal district judge refused to pause the law, and in April 2026 the Seventh Circuit Court of Appeals affirmed that ruling, leaving the restrictions in force while the plaintiffs weigh a petition to the U.S. Supreme Court.¹

What the Law Does

The challenged statute, Wisconsin Statutes § 995.15, was enacted through 2023 Wisconsin Act 73. It requires manufacturers of electronic vaping devices to certify to the Wisconsin Department of Revenue that their products have received marketing authorization from the U.S. Food and Drug Administration.² The Department publishes an Electronic Vaping Device Directory, and anything not on it cannot legally be sold in Wisconsin.³

The practical reach is narrow. As of June 2026, only 41 e-cigarette products have received FDA marketing authorization nationwide, from just five companies: NJOY, R.J. Reynolds Vapor (Vuse), Logic Technology, JUUL Labs, and Glas.⁴ Wisconsin’s directory includes device components, accessories, and vape liquids as well, bringing the total to 345 listed products.³ Most disposable vapes, flavored liquids, and open-system devices from smaller manufacturers are not covered.

Enforcement for nicotine-containing products began September 1, 2025. Hemp-based vaping devices with no nicotine have a later certification deadline of July 1, 2026, with penalties starting September 1, 2026.³ Retailers and manufacturers who sell unlisted devices face a forfeiture of $1,000 per day per product, and non-compliant inventory can be seized and destroyed at the violator’s expense.⁵

Who Sued and Why

The complaint was filed on June 30, 2025, in the U.S. District Court for the Western District of Wisconsin as case number 3:25-cv-00552-wmc.⁶ The lead plaintiff is Wisconsinites for Alternatives to Smoking and Tobacco, Inc., known as WiscoFAST, a nonprofit trade organization representing Wisconsin vape shops and specialty retailers.⁷ Joining the suit are Distro Guys Wholesale, The Supply Plus, Johnny Vapes, Nara Smoke Shop, Wages and White Lion Investments (doing business as Triton Distribution), and two Wisconsin consumers, Kurt Wylie and Germaine Carmody.⁸ The defendant is David Casey, Secretary of the Wisconsin Department of Revenue, sued in his official capacity.⁹

The plaintiffs raised two constitutional claims. The first was federal preemption. They argued the Wisconsin law conflicts with the Supremacy Clause because Congress gave the FDA exclusive authority over premarket authorization of tobacco products under the Federal Food, Drug, and Cosmetic Act and the Tobacco Control Act, leaving no room for a state to build a parallel enforcement regime on top of federal standards.⁸ The second was equal protection. They argued the law irrationally treats products with tobacco-derived nicotine differently from those with synthetic or non-tobacco-derived nicotine.⁹

On July 8, 2025, the plaintiffs moved for a preliminary injunction to stop enforcement before the September 1 deadline.⁹

How the Courts Ruled

On September 5, 2025, U.S. District Judge William M. Conley denied the preliminary injunction and let the law take effect on schedule.¹⁰

The plaintiffs did win on standing. Judge Conley rejected the state’s argument that the businesses had no legally protected interest because selling unauthorized vaping products already violates federal law. He found the plaintiffs were operating under the FDA’s longstanding non-enforcement posture toward unauthorized products and that Wisconsin’s law caused concrete, imminent harm: lost sales, destroyed inventory, and the risk of business closure.¹⁰

On the merits, though, the court found the plaintiffs unlikely to win their preemption claim. The judge pointed to two provisions of the Tobacco Control Act that preserve state authority: the Preservation Clause, which allows states to impose requirements “in addition to, or more stringent than” federal tobacco rules, and the Savings Clause, which protects state regulation of the sale, distribution, and possession of tobacco products. He distinguished Buckman Co. v. Plaintiffs’ Legal Committee (2001), which the plaintiffs had leaned on, by noting that tobacco regulation is a field traditionally handled by states and that the Tobacco Control Act expressly preserves that role. Wisconsin’s statute, the court concluded, does not “enforce” the FDCA; it creates a state directory requirement that uses federal authorization as one of its criteria.¹⁰ Real economic harm, without a likely win on the law, was not enough for an injunction. A second request for an injunction pending appeal was denied on September 10, 2025.⁶

WiscoFAST appealed the same day. The Seventh Circuit heard oral arguments on December 10, 2025, and on April 21, 2026, affirmed the district court and upheld the law.¹ The appeals court emphasized what it called the Tobacco Control Act’s “tripartite preemption structure” — the Preservation, Preemption, and Savings Clauses — and concluded that federal law expressly preserves state authority to regulate tobacco sales. The Seventh Circuit also addressed a conflicting ruling from a federal district court in Iowa, Iowans for Alternatives to Smoking and Tobacco v. Iowa Department of Revenue, which had found a similar state vaping registry preempted. The Seventh Circuit said the Iowa court “overreads” Buckman and wrongly concluded that the FDCA’s exclusive federal enforcement provision bars all state enforcement that references federal standards. Using federal authorization as a criterion for a state directory, the court held, is not the same as enforcing the federal statute.¹¹

What Happens Next

The split between the Seventh Circuit and the Iowa district court is what legal observers have called “ripe for U.S. Supreme Court review.”¹² As of mid-2026, WiscoFAST had not filed a petition for certiorari. David Beaupre, the organization’s president, said attorneys are watching opinions from other circuits, including the Eighth Circuit, and are “keeping open the possibility of going to the U.S. Supreme Court.”¹

A legislative fix also failed. Senator Patrick Testin introduced Senate Bill 257 in May 2025 to narrow the definition of “electronic vaping device” to nicotine-delivering devices only and to exclude FDA-authorized drugs and devices from the directory requirement.¹³ The Senate Committee on Agriculture and Revenue recommended passage on a 7-1 vote in June 2025, but the bill never reached a floor vote and died with the end of the legislative session on March 23, 2026.¹⁴ WiscoFAST has said lobbying lawmakers to revisit the statute remains part of its strategy alongside any further litigation.¹

Enforcement Since the Ruling

The Department of Revenue has moved aggressively on nicotine products, targeting disposable vapes, open-tank systems, and liquids from manufacturers without FDA marketing authorization.¹⁵ The most prominent action to date has been against Exclusive Tobacco in Oshkosh. Inspectors seized 1,244 unlisted vape devices, triggering an initial penalty above $12.4 million under the $1,000-per-device-per-day formula. A follow-up inspection added $431,000, pushing the total near $13 million. The business was also cited for operating with an expired municipal license, and the owner is appealing.¹⁶

Smaller shops have reported steep losses. Tyler Hall, WiscoFAST’s president and a Green Bay vape shop owner, said sales at his store dropped about 80% after enforcement began. Brett Huber, manager of a Milwaukee shop called Cents, said the store lost more than a third of its inventory and was “out tens of thousands of dollars wholesale cost” because wholesalers offered no buybacks for newly prohibited products.¹⁷ Smokey’s Tobacco and Vape in Grand Chute said half its customers walked out after seeing the limited selection of authorized devices, with disposables having been the store’s biggest revenue source.¹⁵ Industry representatives have described the law as creating a monopoly that favors large tobacco companies over small retailers. Unless the Supreme Court takes the case or the legislature changes course, that is the enforcement environment Wisconsin retailers and consumers will continue to operate under.

1
Wisconsin Law Journal. Wisconsin Vape Law Upheld Amid Possible Supreme Court Clash
2
Wisconsin State Legislature. Senate Bill 257 – Section: 2023 Wisconsin Act 73
3
Wisconsin Department of Revenue. Electronic Vaping Device Directory
4
U.S. Food and Drug Administration. E-Cigarettes, Vapes, and Other ENDS Authorized by FDA
5
Wisconsin Department of Revenue. Vapor Products Tax and Regulations
6
Justia Dockets. Wisconsinites for Alternatives to Smoking and Tobacco v. Casey
7
WBAY. Wisconsin Trade Organization Loses Lawsuit Against New Vape Regulations
8
WPR. WiscoFAST v. Casey Complaint
9
Yahoo Finance. Federal Lawsuit Filed to Stop Wisconsin’s Vape Regulations
10
WPR. WiscoFAST v. Casey Order Denying Preliminary Injunction
11
U.S. Court of Appeals for the Seventh Circuit. WiscoFAST v. Casey, No. 25-2565
12
Milwaukee Journal Sentinel. Wisconsin’s Ban on Many Vapes Upheld in Appeals Court
13
Wisconsin State Legislature. Senate Bill 257
14
Fast Democracy. Wisconsin Senate Bill 257
15
Fox 11 Online. Wisconsin to Enforce New Regulations on Electronic Vaping Devices Beginning Sept 1
16
Tobacco Reporter. Tobacco Retailer Fined $13M Under Wisconsin’s New Vape Law
17
Spectrum News 1. Vape Law Wisconsin WiscoFAST