Spencer v. Vapor Technology Association — The TCA “Preservation Sandwich” Shields State ENDS Sales Restrictions (and Health-and-Safety Findings Can Justify Foreign-Origin Limits) at the Preliminary-Injunction Stage

Introduction

Case: Spencer v. Vapor Technology Association, Supreme Court of Alabama (July 2, 2026) (Sellers, J.).
Parties: Alabama officials (ABC Board leadership/members; ALEA leadership; SBI director; Revenue Commissioner) vs. Vapor Technology Association and Southside Vape, LLC.
Dispute: A pre-enforcement constitutional challenge to Act No. 2025-403 (the “Alabama Act”), codified in Title 28, Chapter 11, regulating electronic nicotine delivery systems (“ENDS”) and e-liquids (“vapes”). The Act builds a certification-and-directory regime (the ENDS Product Directory) and, critically, restricts which products can be added to the Directory—generally excluding foreign-made products unless they have an FDA marketing order/authorization.

Procedural posture: The trial court initially issued a TRO, then denied a preliminary injunction but extended the TRO pending appeal under Rule 62(c), Ala. R. Civ. P. The State appealed (arguing lack of standing); the plaintiffs cross-appealed (arguing the preliminary injunction was wrongly denied). The Alabama Supreme Court consolidated the appeals and affirmed.

Key issues: (1) Standing to challenge the Alabama Act; (2) whether plaintiffs showed a “reasonable chance of success” for a preliminary injunction on (a) implied preemption (FDCA § 337(a) / TCA) and (b) the dormant Commerce Clause (foreign-commerce discrimination).

Summary of the Opinion

  • Standing: The Court held plaintiffs had standing because enforcement would cause concrete economic injury (lost profits/employees, potential closures) and expose them to penalties and seizures; the injuries were caused by the Act and redressable by an injunction.
  • Preliminary injunction: Although the trial court found irreparable harm and no adequate remedy at law (because sovereign immunity would bar damages), it denied a preliminary injunction. The Supreme Court affirmed because plaintiffs failed to show a reasonable likelihood of success on the merits of their constitutional claims.
  • Implied preemption: The Court rejected the claim that FDCA § 337(a) impliedly preempts the Alabama Act, emphasizing the TCA’s express state-authority structure in 21 U.S.C. § 387p (preservation clause + preemption clause + savings clause) that broadly preserves state power over tobacco-product sales and distribution.
  • Dormant Commerce Clause: Even assuming the Alabama Act discriminates against foreign commerce, the Court held the State proffered a legitimate, non-pretextual health-and-safety purpose supported by legislative findings; plaintiffs did not show a likelihood of success in proving unconstitutional discrimination.

Analysis

Precedents Cited

1) Standing and cognizable injury

  • Lujan v. Defenders of Wildlife — Provided the three-part standing framework (injury in fact, causation, redressability). The Court used Lujan as the organizing test and found each prong satisfied by threatened enforcement and concrete economic harms.
  • TransUnion LLC v. Ramirez — Cited for the principle that tangible harms, including monetary harms, are “concrete” injuries. This supported the Court’s conclusion that lost profits and business impacts suffice for standing.
  • Alabama Alcoholic Beverage Control Bd. v. Henri-Duval Winery, L.L.C. — Used to reinforce that a business has standing when an act negatively impacts it.
  • Wisconsinites for Alternatives to Smoking & Tobacco, Inc. v. Casey — Cited both for standing/redressability framing (“depends on the relief requested”) and to reject the State’s “still illegal anyway” standing argument.
  • Iowans for Alternatives to Smoking & Tobacco, Inc. v. Iowa Dep't of Revenue — Quoted in a footnote to reject “circular” standing objections based on alleged noncompliance with the federal standards at issue in a preemption challenge.

2) Preliminary-injunction standard and appellate review

  • Holiday Isle, LLC v. Adkins and SouthTrust Bank of Alabama, N.A. v. Webb-Stiles Co. — Supplied the four-factor preliminary-injunction test and deference framework (abuse of discretion).
  • Bethel v. Franklin — Confirmed standards of review (de novo for legal rulings on undisputed facts) and anchored the Court’s approach to evaluating the trial court’s denial.

3) Implied preemption and the TCA’s allocation of regulatory authority

  • Silkwood v. Kerr-McGee Corp. and Geier v. American Honda Motor Co. — Provided the “obstacle preemption” formulation: state law is preempted if it stands as an obstacle to Congress’s purposes or frustrates federal objectives.
  • Buckman Co. v. Plaintiff's Legal Comm. — Plaintiffs relied on it to argue FDCA § 337(a) reserves enforcement to the United States; the Court distinguished it because it did not involve tobacco regulation and did not account for the TCA’s specific preservation/savings clauses in 21 U.S.C. § 387p.
  • New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. and Rice v. Santa Fe Elevator Corp. — Supported the presumption against preemption in fields of traditional state police power, a presumption the Court applied to tobacco/health regulation.
  • R.J. Reynolds Tobacco Co. v. County of Los Angeles, R.J. Reynolds Tobacco Co. v. City of Edina, and U.S. Smokeless Tobacco Mfg. Co. v. City of New York — Persuasive authority for reading § 387p as a “tripartite preemption structure” that broadly preserves state authority over sales/distribution (including strong restrictions and, potentially, bans), while preempting certain federal “production/marketing” categories.

4) Dormant Commerce Clause / foreign-commerce discrimination

  • Campus Crest at Tuscaloosa LLC v. City of Tuscaloosa — Cited for Alabama’s modern articulation of dormant Commerce Clause constraints.
  • Maine v. Taylor — Provided the key test for facially discriminatory statutes: the State must show a legitimate local purpose that cannot be served as well by available nondiscriminatory means.
  • Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dep't of Nat. Res. — Used to contrast impermissible economic protectionism with permissible health-and-safety regulation.
  • Southern Pacific Co. v. Arizona ex rel. Sullivan and South-Central Timber Development, Inc. v. Wunnicke — Quoted within Maine to emphasize that Congress may authorize state action otherwise forbidden, but authorization must be “unmistakably clear.”
  • Baldwin v. G.A.F. Seelig, Inc., Philadelphia v. New Jersey — Quoted within Maine for the principle that states may protect health and safety without “needlessly” obstructing commerce and may treat out-of-state goods differently for legitimate reasons apart from origin.

5) Cook, J.’s separate writing (standing as a “closer question”)

  • Wisconsinites for Alternatives to Smoking & Tobacco, Inc. v. Casey (district-court reference) and Iowans for Alternatives to Smoking & Tobacco, Inc. v. Iowa Dep't of Revenue — Noted as examples where standing was found in similar ENDS preemption challenges.
  • Vapor Tech. Ass'n v. Graham and Vapor Tech. Ass'n v. Taylor — Cited as contrasting federal decisions finding no standing (or rejecting claims) where plaintiffs conceded federal illegality; used to illustrate a national split and the difficulty of the standing inquiry in this niche.
  • Bell v. Redflex Traffic Sys., Inc. and Initiative & Referendum Inst. v. Walker — Quoted for the proposition that an “interest in evading the law” cannot create standing (a rationale Cook, J., treated cautiously in this regulatory context).
  • State v. Epic Tech, LLC — The State’s Alabama authority for “no harm from being stopped from illegality,” acknowledged in Cook’s discussion but not adopted as controlling on these facts.
  • Hanes v. Merrill and Ex parte BAC Home Loans Servicing, LP — Cited to situate Alabama standing doctrine (including its “public-law” context) and the Court’s prior practice of borrowing from federal standing concepts.

Legal Reasoning

1) Standing: credible threat + concrete economic harm

The Court treated the dispute as a classic pre-enforcement challenge: the Act threatened imminent enforcement consequences (directory exclusion, contraband seizure, fines, and criminal penalties), and the plaintiffs alleged concrete economic losses. Those allegations satisfied injury-in-fact (TransUnion LLC v. Ramirez), causation (harm “flows directly” from enforcement), and redressability (an injunction would remove the enforcement threat), relying on Lujan v. Defenders of Wildlife.

The Court also rejected the State’s argument that standing fails because plaintiffs’ conduct might remain illegal “regardless of the outcome.” Citing Wisconsinites for Alternatives to Smoking & Tobacco, Inc. v. Casey and Iowans for Alternatives to Smoking & Tobacco, Inc. v. Iowa Dep't of Revenue, it focused on whether the challenged state enforcement regime itself causes a redressable injury—rather than requiring plaintiffs to prove perfect compliance with the federal scheme they claim preempts the State.

Cook, J., agreed standing existed but cautioned the issue is fact-sensitive, highlighting a growing split: some courts view the “federal illegality” point as defeating a legally protectable interest (Vapor Tech. Ass'n v. Graham; Vapor Tech. Ass'n v. Taylor), while others find standing where federal enforcement is delayed and state enforcement is imminent (Wisconsinites for Alternatives to Smoking & Tobacco, Inc. v. Casey).

2) Why the implied-preemption claim failed at the preliminary-injunction stage

Plaintiffs’ theory was that FDCA § 337(a)—“all proceedings” to enforce the FDCA must be by the United States—impliedly preempts Alabama’s directory and “federally legal” certification approach because it forces state officials to determine federal compliance and effectively usurps FDA enforcement discretion. The Court analyzed this as an implied “obstacle” preemption claim under Silkwood v. Kerr-McGee Corp. and Geier v. American Honda Motor Co..

The Court’s decisive move was to treat tobacco regulation as an area of traditional state police power and then to read the TCA (which amended the FDCA) as expressly preserving significant state authority. Specifically, it relied on the “carefully balanced” scheme in 21 U.S.C. § 387p:

  • Preservation clause (§ 387p(a)(1)): broadly preserves state authority to “enact… and enforce” laws “in addition to, or more stringent than” federal requirements as to “sale” and “distribution,” among other topics.
  • Preemption clause (§ 387p(a)(2)(A)): preempts certain categories (e.g., tobacco product standards, premarket review, labeling), none of which the Court treated as controlling over Alabama’s sales/distribution restrictions.
  • Savings clause (§ 387p(a)(2)(B)): confirms the preemption clause “does not apply” to requirements relating to “sale” and “distribution.”

Anchored by persuasive federal appellate authority describing this “preservation sandwich” (R.J. Reynolds Tobacco Co. v. County of Los Angeles; R.J. Reynolds Tobacco Co. v. City of Edina; U.S. Smokeless Tobacco Mfg. Co. v. City of New York), the Court concluded Congress deliberately left room for states to impose stricter sales and distribution rules—even where state law “mirrors a federal standard.” On that view, the Alabama Act does not “prevent or frustrate” federal objectives; it operates in a domain Congress preserved to the states, defeating plaintiffs’ “reasonable chance of success” on implied preemption.

The Court also distinguished Buckman Co. v. Plaintiff's Legal Comm., emphasizing that Buckman did not involve tobacco, nor did it reckon with § 387p’s preservation/savings structure.

3) Why the dormant Commerce Clause claim failed at the preliminary-injunction stage

Plaintiffs attacked § 28-11-17.2(b)(1)–(2), which restricts adding products to the Directory unless they are U.S.-made (made/packaged/labeled/manufactured in the United States) or have an FDA marketing order/authorization. The Court accepted that the provisions “clearly discriminate against foreign trade,” triggering heightened scrutiny under Maine v. Taylor.

Applying Maine v. Taylor, the Court held the State offered a “compelling” and non-pretextual health-and-safety rationale, relying heavily on the Legislature’s express findings: ENDS are “inherently harmful,” nicotine is “highly addictive,” foreign e-liquids are “notorious” for harmful inputs and fraudulent labeling, and federal regulation was perceived as delayed. In the Court’s view, this placed the statute on the “health and safety regulation” side of the line recognized in Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dep't of Nat. Res., rather than impermissible economic protectionism.

Because plaintiffs bore the burden at the preliminary-injunction stage to show a reasonable likelihood of success, the Court concluded they had not shown the Act’s foreign-origin discrimination lacked a legitimate local purpose or could be served as well by nondiscriminatory alternatives.

Impact

  • State ENDS regulation in Alabama (and persuasive beyond): The decision provides Alabama precedent favoring the view that the TCA’s § 387p structure preserves broad state authority over the “sale” and “distribution” of ENDS/tobacco products, even when state law uses federal legality as a predicate for state permission to sell.
  • Preemption litigation strategy: Plaintiffs challenging state ENDS restrictions will have to confront the Court’s framing that “mirroring” federal standards does not necessarily create an obstacle conflict and that § 387p reflects Congress’s deliberate allocation of power to states in this field.
  • Foreign-commerce challenges: Alabama signaled that explicit legislative findings tied to health and youth protection can be pivotal in defending facially discriminatory foreign-origin restrictions under Maine v. Taylor, at least for preliminary relief.
  • Standing doctrine (open edges): While the majority endorsed standing for regulated entities facing imminent enforcement, Cook, J.’s concurrence underscores that “federal illegality” arguments will continue to surface and may produce different results under different records (e.g., clearer concessions, different enforcement realities, or a more criminalized federal posture).
  • Limits of the holding: The Court affirmed denial of a preliminary injunction; it did not finally adjudicate constitutionality after full merits development. Still, its merits analysis substantially informs future litigation posture and trial-court likelihood-of-success determinations.

Complex Concepts Simplified

Preliminary injunction
A temporary court order issued early in a case to stop enforcement while the lawsuit proceeds. In Alabama, the movant must show irreparable harm, no adequate legal remedy, a reasonable chance of success on the merits, and that hardships favor the injunction (as described in Holiday Isle, LLC v. Adkins).
Sovereign immunity (State immunity)
The principle that the State and its officials (in many official-capacity contexts) cannot be sued for money damages without consent. Here, the trial court viewed this as making money damages unavailable—supporting “no adequate remedy at law”—but that did not eliminate the separate requirement to show likely success on the merits.
Implied (obstacle) preemption
Even without an express statement, state law can be invalid if it conflicts with federal objectives—i.e., if it “stands as an obstacle” to Congress’s purposes (Silkwood v. Kerr-McGee Corp.; Geier v. American Honda Motor Co.).
TCA § 387p “preservation / preemption / savings” structure
Congress both (a) preserved broad state power over tobacco-product sales and distribution, (b) preempted certain specific categories (like product standards and premarket review), and (c) clarified that sales/distribution rules are saved from that preemption. The Court treated that structure as the decisive textual answer to plaintiffs’ FDCA § 337(a) theory.
Dormant Commerce Clause (foreign-commerce discrimination)
A constitutional doctrine limiting state laws that burden or discriminate against interstate or foreign commerce. If a law facially discriminates, the state must justify it with a legitimate local purpose that cannot be served as well by nondiscriminatory means (Maine v. Taylor).

Conclusion

Spencer v. Vapor Technology Association is an important early Alabama appellate decision on modern ENDS regulation. It (1) confirms standing for regulated entities facing imminent enforcement and concrete economic harm, (2) reads the TCA’s § 387p as preserving robust state authority over the sale and distribution of tobacco products—undercutting implied-preemption claims based on FDCA § 337(a), and (3) signals that foreign-origin restrictions can survive dormant Commerce Clause scrutiny where backed by substantial, non-protectionist health-and-safety findings, at least for purposes of defeating preliminary injunctive relief.