FOND DU LAC (NBC 26) — A group of Wisconsin e-cigarette retailers is suing the state over a law that requires electronic vaping devices to be authorized by the FDA before they can be sold.
We spoke with an owner of one of the retailers listed in the suit.
The lawsuit, filed against David Casey, Secretary of the Wisconsin Department of Revenue, challenges the implementation of Wisconsin Act 73, which was passed in 2023 and began enforcement on July 1.
Zach Rozenboom, owner-operator of The Supply Plus, an e-cigarette and vape business in Fond Du Lac, Oshkosh, and Jackson, says the law threatens the survival of his store.
"For me, I was a cigarette smoker. As was my business partner and most of our customer. And vaping kind of came around…and it worked," Rozenboom said.
The law requires manufacturers of electronic vaping devices to have their products authorized by the FDA. The registration window for authorization opened July 1st, according to Rozenboom. Manufacturers have until September 1 to get their products authorized for sale, after which stores caught selling unauthorized products face fines of up to $1,000 per product.
"To be frank with you, we would be crippled," Rozenboom said.
According to Rozenboom, about 84% of the products his store sells would no longer be available under the new regulations.
The Supply Plus has joined a group of plaintiffs, including Wisconsinites for Alternatives to Smoking and Tobacco, Inc. (WiscoFAST), to sue the state and challenge the law.
The lawsuit argues that the law violates the Supremacy Clause of the U.S. Constitution by usurping the FDA's authority and the Equal Protection Clause of the Fourteenth Amendment by arbitrarily prohibiting certain nicotine products while allowing others.
Eric Heyer, a lawyer representing the plaintiffs, stated in a press release that the law "threatens the very existence of the independent vaping industry in Wisconsin" and could cause former smokers to return to cigarettes if they can't access their preferred vaping products.
A hearing on the case is scheduled for July 30 in Madison.
I've reached out to Secretary Casey's office for comment, as well as lawmakers who voted in favor of the act, but have not received a response.
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