Attorneys with theAlabama ABC Board, Alabama Law Enforcement Agency (ALEA), and the Petroleum & Convenience Marketers of Alabama (P&CMA) signed on to an agreement in federal court on Thursday that loosens restrictions on the types of vape products that can be sold in convenience stores under a new law passed in the 2025 session.
Gov. Kay Ivey signed a bill by State Rep. Barbara Drummond (D-Mobile) regulating the sale of vape products on May 14. The bill restricts what vape products can be sold at convenience stores.
According to a statement from the P&CMA, the convenience store industry in Alabama filed suit on Tuesday against the Alabama ABC Board, its members and others in separate lawsuits in federal and state court seeking temporary restraining orders and further injunctive relief against the enforcement of the bill. P&CMA, along with Young Oil Inc., are the plaintiffs in the action filed in federal court in the U.S. District Court for the Middle District of Alabama in Montgomery. P&CMA member Home Oil Company, Inc. filed suit in the Circuit Court of Montgomery County, Alabama, making similar claims and seeking similar relief as the federal court action.
P&CMA’s lawsuit states their members would lose revenue “north of one hundred million dollars total” if a provision limiting most vape products to specialty 21-and-over vape shops were to go into effect on Sunday as scheduled.
“First, the provision restricting the sale of many e-cigarettes to adult-only ‘specialty retailers’ (§ 28-11-7.1(c)) is preempted by federal law. This new provision prohibits non-specialty retailers (like gas stations and convenience stores that hold tobacco permits) from selling any e-cigarette, unless that e-cigarette has FDA authorization. In other words, gas stations and convenience stores can no longer sell an e-cigarette, unless that e-cigarette has FDA authorization. But only FDA has the power to enforce the federal Food, Drug & Cosmetic Act (“FDCA”). 21 U.S.C. § 337(a). And to the extent that the specialty-retailer provision purports to allow the ABC Board (and derivatively the Alabama Law Enforcement Agency, see Ala. Code § 41-27-5(d)) to bring enforcement action against retailers based solely on whether a product has been formally authorized by FDA, this provision is preempted by federal law,” Robert Baxley, an attorney representing the convenience store association, said in the lawsuit filed on Tuesday.
Vape Lawsuit by Caleb Taylor on Scribd
In a statement announcing the lawsuit, P&CMA said, “With thousands of products in limbo awaiting approval and lack of clarity from FDA, convenience stores that are selling only FDA-approved vape products are at a disadvantage for selling responsibly.”
“There is a universe of products that are not approved but not illegal that anyone, including convenience stores, can sell. But the FDA has not made clear what’s in that universe,” said National Association of Convenience Stores general counsel Doug Kantor in a statement. “However, a lot of vape shops are willing to sell things that are clearly illegal that convenience retailers won’t sell. And therefore, they are at somewhat of a competitive disadvantage for selling responsibly.”
According to a joint stipulation signed by attorneys with ALEA, the ABC Board, and the convenience stores on Thursday, both sides in the lawsuit “preliminarily agree” to expand the list of allowable vape products sold in convenience stores in Alabama beyond what was in the bill passed in the 2025 session.
Upon entry of the agreement on the record in court, P&CMA will withdraw its motion for a temporary restraining order and preliminary injunction. The stipulation remains in effect until disposition of the case, further agreement from the parties, or further order from the court.
UPDATE: After publication, a spokesman for Alabama Attorney General Steve Marshall said in a statement, “ABC and ALEA, agreed to a stipulation that does not expand what vape products can be sold in Alabama beyond what was allowed by the bill passed in the 2025 session. It simply reaffirms that convenience stores with a tobacco license can sell ENDS that have either a marketing order or other FDA authorization, just as the Act states.”
“The term “other authorization” reflects the FDA’s longstanding enforcement policy, which already permits certain products to be sold under specific conditions even if they don’t yet have a marketing order. This is not a new or an expanded category, it’s already codified in state law and used for the Department of Revenue’s ENDS product registry. So, in short, there was no concession or expansion of the law. The stipulation just confirms what the Act already allows in exchange for the withdrawal of the plaintiffs’ TRO motions,” the spokesman said.
Vape Stipulation by Caleb Taylor on Scribd
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