FIFTH CIRCUIT’S LATEST DECISION CONFIRMS FDA’S UNLAWFUL PMTA SYSTEM IMPOSES “DE FACTO BAN” ON FLAVORED VAPES

The decision underscores years of advocacy from the independent vapor industry for the transparent, science-based regulation needed from the Trump Administration.

WASHINGTON, D.C. — August 24, 2026 — Last week the U.S. Court of Appeals for the Fifth Circuit reinforced the independent vapor industry’s advocacy for a complete reset of vapor regulation with its decision in NicQuid, LLC v. U.S. Food and Drug Administration. The court found that FDA used the PMTA regulation to impose a “de facto ban” on flavored vapor products based on sweeping regulatory decisions made “behind closed doors,” exposing the fundamentally unlawful manner in which FDA has repeatedly crushed American small businesses for years.

The Fifth Circuit indicted the FDA for creating a binding regulatory rule without any regulatory authority that its explanations of how it handled flavored vapes “cannot conceal or excuse the secretive development of a prospective policy…[t]his is not a close call.” 

“This decision lays bare the fundamental problem with FDA’s entire approach to PMTA,” said Tony Abboud, Executive Director of VTA. “FDA did not merely make a technical mistake in reviewing one company’s applications. It built its vapor regulatory regime around standards that were never lawfully adopted, were developed behind closed doors, and were then used to suffocate an entire industry. That is not a system that can be repaired around the edges. It must be replaced.”

The decision confirms what the independent vapor industry has argued for years: FDA transformed a product-by-product authorization process into a mechanism for imposing sweeping market policy without first establishing clear, lawful rules governing what manufacturers must prove.

In light of this most recent 5^th Circuit decision, VTA is calling on President Trump, HHS Secretary Robert F. Kennedy Jr., and FDA Acting Commissioner Kyle Diamantas to use the NicQuid decision as the catalyst for a complete reset of vapor regulation. Specifically, the Administration should replace the current PMTA regulation with clear, transparent, and objective scientific guidance for ingredient purity, nicotine delivery, toxicology, product stability, device performance, and youth protections.

“This Administration inherited a regulatory system that is legally indefensible, scientifically incoherent, and practically unworkable. It should not spend another day trying to preserve it. You cannot tweak a system built on an unlawful foundation. You repeal it and replace it,” Abboud said. “American vapor companies that have suffered under the current unlawful regulation demand reform, certainty and science. American vaping voters deserve to be heard.”  

The ruling comes just weeks after national polling released by VTA found overwhelming public support (71%) for repealing and replacing FDA’s current PMTA rules with clear, science-based guidelines for manufacturers.

“Americans have once again made it clear where they stand when it comes to vaping policy. More than 70% of voters want the current rules for vapor products repealed and replaced with clear scientific standards. They do not support the sweeping bans and threat to personal choice that defined the last administration,” said Kellyanne Conway. 

The polling also found that a majority of voters (67%) support regulations that protect youth while recognizing adult demand for flavored vapor products and (77%) support allowing products with pending FDA applications that do not target youth to remain on the market while a new system is implemented.

“The legal case for change and the public case for change are now aligned,” Abboud said. “The Fifth Circuit has exposed the unlawful foundation of FDA’s approach, and voters overwhelmingly want that approach repealed and replaced. The time is now for the Trump Administration to keep its promise to save flavored vapes by dismantling the broken system which has crushed American small businesses, and replacing it with one that protects youth, preserves adult choice, and gives American manufacturers and small businesses a clear and lawful pathway to compete.”

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WASHINGTON – AUGUST 19, 2026 –  The Vapor Technology Association is pleased to learn that President Trump has put forth a nomination for the next leader of the U.S. Food and Drug Administration. VTA has appreciated its previous opportunities to constructively engage with the FDA and discuss the urgent need for real reform to the PMTA regulation and the implementation of a predictable and transparent, science-based regulatory framework for nicotine vapor products. 

We look forward to continuing these discussions and working with Dr. Heidi Overton once her confirmation process is complete. We remain committed to working with the future Commissioner, the Administration, and policymakers to streamline the PMTA process, strengthen responsible marketing standards to keep products out of the hands of youth, and ensure the United States leads with a balanced regulatory approach grounded in science, harm reduction, and common sense.

Statement attributable to Tony Abboud, Executive Director of the Vapor Technology Association.

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WASHINGTON – June 29, 2026 – On Friday, the U.S. Food and Drug Administration
announced a new rule that it claims will protect public health by “strengthening the agency’s
ability to efficiently identify illegal foreign tobacco products.” The proposed rule would require
foreign manufacturers to register their establishments and list their products with the FDA –
something U.S. manufacturers are already required to do.

While VTA is pleased to see the FDA planning new enforcement tools – which we have
advocated are needed to help distinguish good, compliant actors from bad actors – the
effectiveness of this proposal depends entirely on whether FDA implements an actual solution
to the regulatory wall that has quashed American innovation and barred authorization of less
harmful flavored ENDS products for years, thus driving illicit marketplace.

It is perplexing to see the FDA prioritizing rules proposed by the Biden Administration, such as
this one, over the establishment of a predictable, transparent, and science-based regulatory
framework under which U.S. products can be rapidly evaluated and authorized. The proposed
rule is another example of the FDA continuing to delay the urgently needed regulatory reform
that would provide certainty for responsible companies, make clear which products qualify for
authorization and which do not, and give regulators a much stronger foundation to enforce
against bad actors operating outside the rules. Until the marketplace is filled with authorized
flavored ENDS products, a rule aimed at identifying unauthorized foreign products will do little.

We hope to see the FDA shift its focus away from the policies that President Trump pledged to
roll back and urgently focus on the reforms needed to fix the broken system and provide 25
million Americans access to the less harmful flavored ENDS products that they are using to stop
smoking deadly cigarettes. We look forward to continuing to engage with them on productive
policy moving forward.

Statement attributable to Tony Abboud, Executive Director of the Vapor Technology Association.

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WASHINGTON – June 24, 2026 – VTA is pleased to see the U.S. Food and Drug Administration’s (FDA) Center for Tobacco Products (CTP) promote the results of the 2025 National Youth Tobacco Survey (NYTS), which were originally released in March.

The findings prove what VTA has been saying for years: youth tobacco use, including vaping, is at historic lows and youth vaping is rapidly disappearing. 

According to the results, the youth vaping rate is just 5.2%, representing an 11.9% decrease over the past year and a 74% decrease since President Trump’s landmark 2019 decision to raise the age to buy tobacco products – a policy that VTA was proud to champion. This enormous drop in youth vaping occurred while the presence of flavored vaping products continued to grow in the marketplace – real world evidence proving that the availability of flavored vapes has little to no relevance to youth usage.

Now that youth vaping has fallen below pre-regulation levels, it is time for the FDA to establish a predictable, transparent, and science-backed regulatory system that ensures American adults – the ones overwhelmingly using flavored vapes – have access to the products they have chosen to help them quit smoking deadly cigarettes.  

VTA applauds the FDA for making it clear that vapes should not target youth and for focusing on eliminating vapes with video games, bluetooth, and phone apps, and those disguised to look like other products. Like raising the age to 21, common-sense policies that keep these products out of the hands of youth, while promoting adult access to the most effective smoking cessation tool available, are crucial for public health. The FDA must now align itself with President Trump’s commitment to save flavored vapes, save American flavored e-liquid manufacturers, and save small businesses selling flavored vapes across the country.

Statement attributable to Tony Abboud, Executive Director of the Vapor Technology Association.

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WASHINGTON – May 12, 2026 – The Vapor Technology Association appreciated the opportunity to meet with former FDA Commissioner Marty Makary last week and discuss the urgent need for real reform to the PMTA regulation and the implementation of a predictable and transparent, science-based regulatory framework for nicotine vapor products. While our engagement with the Commissioner was brief, we believed he was beginning to recognize that the current system requires substantial reform and that progress is needed to move more quickly.

VTA now looks forward to continuing its constructive engagement with Acting FDA
Commissioner Kyle Diamantas and whoever is ultimately selected to permanently lead the
agency moving forward. As it currently stands, the agency’s recent actions have not been
enough to keep President Trump’s promise to save flavored vaping. Our message remains
consistent: the United States can both ensure adult smokers have access to a wide variety of
less harmful nicotine alternatives and keep these products out of the hands of youth. Those
goals are not mutually exclusive, and responsible regulation must reflect that reality.

For years, VTA has advocated for a regulatory framework that provides clear scientific
requirements, transparent standards, and consistent enforcement against bad actors and illicit
products. American small businesses and millions of adult consumers deserve a system that is
predictable, credible, and capable of distinguishing responsible operators from those who
undermine public trust and youth protections.

We remain committed to working with FDA leadership, the Administration, and policymakers to
modernize the PMTA process, strengthen responsible marketing standards, and ensure the
United States leads with a balanced regulatory approach grounded in science, harm reduction,
and common sense.

Statement attributable to Tony Abboud, Executive Director of the Vapor Technology Association.

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WASHINGTON – May 11, 2026 – Today, the FDA announced new guidance for industry regarding enforcement priorities for certain products marketed without premarket authorization. This will allow companies that have submitted all the necessary scientific information for a PMTA to remain on the market and ensure FDA enforcement remains focused on products trying to circumvent the application process.

This decision is a critical first step towards establishing real reform that will finally fix a broken PMTA system through the creation of predictable and transparent, science-based regulations that will drive innovation and ensure safety. 

VTA has engaged constructively with FDA staff over the past few months, and the conversations have been productive. We are pleased to see the FDA focused on targeting specific products clearly marketed toward youth and committed to publishing lists of products working through the PMTA process, both things VTA has long advocated for.  We hope that today’s announcement marks the first step towards radical reform that prioritizes science and are eager to continue working alongside the FDA’s team to ensure real progress is made. What’s needed is a clear scientific guideline that would provide certainty for responsible companies, make it obvious which products qualify for authorization and which do not, and give regulators a much stronger foundation to enforce against bad actors operating outside the rules.

Statement attributable to Tony Abboud, Executive Director of the Vapor Technology Association.

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WASHINGTON – March 11, 2026 – Yesterday’s decision by the International Trade Commission ruling no violation in the case brought by R.J. Reynolds Tobacco Company and its affiliates is a corroboration and validation of what the Vapor Technology Association has passionately advocated for: a free and fair marketplace that limits the power of Big Tobacco monopolies and allows the independent U.S. vaping industry a chance to continue to deliver less harmful vaping products to American consumers struggling to quit smoking. 

Without this ruling, an exclusion order banning all nicotine vaping devices from entering the United States would have been implemented. Such a ban would have decimated the independent U.S. vaping industry – which accounts for more than $20 billion in economic output and employs approximately 130,000 Americans – and handed control of the entire vaping marketplace to a cigarette company, forcing Americans to return to smoking deadly cigarettes. 

The ITC’s decision yesterday represents a positive path forward for our industry. It proves that unlike the misguided FDA, some federal agencies are still willing to stand up to corporate interests for the good of our free market and American public health. The ITC’s decision, rejecting all of the claims, is a decisive blow against those seeking to use government agencies to corner a market and a huge step for President Trump’s America First agenda. 

We appreciate the ITC referencing our submission in its final decision and take this inclusion as a sign that the ITC seriously listened to the concerns of the massive American independent vaping industry.

Statement attributable to Tony Abboud, Executive Director of the Vapor Technology Association.

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WASHINGTON – March 3, 2026 –

“VTA is deeply disappointed that SB 287 has been signed into law, a burdensome and small business-crushing piece of legislation that will cripple South Carolina’s independent vaping industry and ultimately set back public health in the state. The provisions in this PMTA bill will harm South Carolina’s economy and eliminate access to the harm reduction benefits of e-cigarettes for adults looking to quit smoking.

SB 287 is detrimental to small business owners throughout the state, as well as the millions of consumers who rely on vapor products as a smoking cessation tool. Instead of prioritizing the health of South Carolinians who smoke and protecting products proven to be less harmful than combustible cigarettes, SB 287 is designed to limit the vapor products marketplace to a handful of tobacco-flavored and menthol-flavored, out-of-date products that were on the market over a decade ago and are controlled by Big Tobacco. SB 287 will lead to significant unintended consequences, including the closure of small businesses, hundreds of well-paying jobs lost across the state, and over $53 million of tax revenue dollars drained from the state’s economy.

The passage of this legislation sets a dangerous precedent of picking winners and losers through a directory system built on ambiguous compliance requirements, which will imperil the economic freedoms and consumer choices that are so important to South Carolinians.

Despite these developments in South Carolina, VTA continues its call for state and federal officials to establish scientific primacy and integrity in the regulations governing the safe and reliable sale of e-cigarettes to adult consumers.”

Statement attributable to Tony Abboud, Executive Director of the Vapor Technology Association.

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