Washington's Vape Reset Now Runs Into the Courts — and the States

The most consequential shift in U.S. vapor policy in nearly a decade did not happen this week — it happened in early May. But this is the week the consequences started landing: in federal courtrooms, in state attorney-general directories, and on the desks of distributors trying to work out which products they can still legally move.

For B2B operators, the question has quietly changed from "what is Washington going to do" to "what does Washington's reversal actually mean for my catalog, my suppliers, and my exposure." Here is where things stand.

In early May, the FDA authorized its first fruit-flavored e-cigarettes — mango and blueberry products from Los Angeles–based Glas — the agency's first flavored clearances beyond tobacco and menthol, paired with digital age-verification (STAT; PBS NewsHour). Days later it issued enforcement-discretion guidance signaling it would not prioritize action against certain unauthorized ENDS and nicotine-pouch products whose applications are filed and accepted — and, for flavored products, where the maker has submitted what the agency deems sufficient data (FDA CTP).

Two details matter for anyone reading this as a green light. The guidance does not require the FDA to finish evaluating that data before a product benefits — review can come later. Critics, including former CTP officials, called it a "get-out-of-jail-free card" that rewards companies that ignored the rules over those that kept products off the market. And the agency framed the move as a redirection of enforcement, not a retreat: resources are meant to concentrate on the worst actors — toy-like, youth-appealing designs and the illicit Chinese disposables estimated at 70–80% of the market.

The leadership turnover shows how contested this was. Commissioner Marty Makary resigned in mid-May amid the dispute — reporting indicates he resisted the flavored clearances before the White House overrode him — with Kyle Diamantas stepping in as acting commissioner and Bret Koplow serving as acting CTP director (CBS News). A policy delivered under that much friction is a directive, not a consensus — and directives can move again.

This is the week's underappreciated story. While the agency loosens its grip administratively, the courts are pulling the other way. In June, the Fifth Circuit pressed the FDA on the standard it used to evaluate flavored vapes — specifically whether it lawfully required makers to prove their flavored products outperform tobacco-flavored alternatives at moving smokers off combustibles (Tobacco Insider). A separate panel questioned whether the FDA properly weighed the small-business impact of its 2021 premarket rule under the Regulatory Flexibility Act (Tobacco Reporter).

The takeaway for the channel: a favorable climate built on guidance — rather than finalized rule or statute — can be unwound by a new administration or narrowed by a court. Operators betting inventory strategy on the May guidance alone are building on softer ground than the trade-press optimism implies.

It would be a costly misread to treat "enforcement discretion" as "enforcement retreat." The hard edge — interdiction of unauthorized imports — remains funded and active. Congress directed the FDA to spend no less than $200 million on illicit-vape enforcement in FY2026, underwriting a seize-and-destroy posture at ports of entry coordinated with Customs and Border Protection (Washington Examiner). The agency reported refusing more than 9,000 tobacco-product shipments in FY2025, up from roughly 1,600 the year prior — even as Chinese export volumes rebounded sharply through late 2025.

For importers and distributors, this is the practical risk that has not changed: a product benefiting from enforcement discretion domestically can still be detained and destroyed at the border if it lacks valid authorization. Supplier due diligence and documentation aren't paperwork — they're loss prevention.

As Washington loosens on flavors and tightens on imports, state-level structure is where a lot of near-term compliance work now lives. Pennsylvania's attorney general published its ENDS directory around June 20, following an April certification deadline; products not listed face their own enforcement path (PA Petroleum Association). Roughly 15 states are weighing some form of flavored-tobacco or nicotine restriction in 2026, with California's statewide flavor ban already operative and renewed activity expected in the Pacific Northwest and at the municipal level.

The competitive logic is sharpening. Established players — Juul and the major tobacco-backed brands — now see an opening to compete directly with Chinese disposables on flavor, with the resources to push applications deep enough into review to benefit from discretion. Smaller manufacturers fear being filtered out by the same dynamic; the Vapor Technology Association has flagged exactly that concern. Directory listing, application status, and clean import documentation are becoming the dividing line between businesses that can stock confidently and those operating on borrowed time.