The WiscoFAST lawsuit challenging Wisconsin’s vape sales law is on the losing side of every ruling issued so far. A federal district judge denied the group’s request to block the law in September 2025, and on April 21, 2026, the U.S. Court of Appeals for the Seventh Circuit affirmed that decision and upheld the statute. WiscoFAST is now weighing a petition to the U.S. Supreme Court while pushing state lawmakers to amend the law.
The Seventh Circuit Ruling
The Seventh Circuit’s April 2026 decision is the most important development in the case. Writing for a three-judge panel, Chief Judge Michael Brennan held that the federal Tobacco Control Act contains a “tripartite preemption structure” that expressly preserves state authority to regulate the sale of tobacco products, up to and including banning their sale outright. State laws “relating to the sale [or] distribution” of tobacco products, the panel concluded, are not preempted by federal law.1U.S. Court of Appeals for the Seventh Circuit. Wisconsinites for Alternatives to Smoking and Tobacco, Inc. v. Casey
Brennan acknowledged that WiscoFAST had shown its member retailers would suffer irreparable harm under the statute. He concluded, however, that “the balance of harms and the public interest do not weigh in favor of enjoining enforcement of the state law,” and noted that the group’s delay in filing suit undercut its request for emergency relief.2Wisconsin Law Journal. Wisconsin Vape Law Upheld Amid Possible Supreme Court Clash The panel treated the preemption question as central and found WiscoFAST had not established a likelihood of success on the merits overall, disposing of the equal protection argument in short order.1U.S. Court of Appeals for the Seventh Circuit. Wisconsinites for Alternatives to Smoking and Tobacco, Inc. v. Casey
How the Case Got There
WiscoFAST, a trade group led by Green Bay vape shop owner Tyler Hall, filed suit on June 30, 2025, in the U.S. District Court for the Western District of Wisconsin against Wisconsin Department of Revenue Secretary David Casey.3CSP Daily News. Wisconsin Trade Organization Sues State Over New Vapor Enforcement Law The suit challenged 2023 Wisconsin Act 73, which requires that any electronic vaping device sold in Wisconsin be certified by its manufacturer and appear on a state directory maintained by the Department of Revenue. Only products with FDA marketing authorization qualify. Unlisted products can be seized, and retailers face forfeitures of $1,000 per device, per day.4Wisconsin Department of Revenue. Electronic Vaping Device Directory
The complaint made two constitutional claims: that the law violates the Supremacy Clause by usurping the FDA’s exclusive authority over the Federal Food, Drug, and Cosmetic Act, and that it violates the Fourteenth Amendment’s Equal Protection Clause by treating tobacco-derived and non-tobacco-derived nicotine products differently without a rational basis.5Wisconsin Public Radio. WiscoFAST Verified Complaint
WiscoFAST moved for a preliminary injunction on July 8, 2025, aiming to stop the law before its September 1 enforcement date. Judge William M. Conley denied the motion on September 5, four days after the law took effect. He found WiscoFAST “failed to demonstrate a reasonable likelihood of success” on the merits and faulted the group for waiting to sue despite “repeated extensions of the date enforcement would begin.”6Wisconsin Public Radio. Lawsuit Wisconsin Vape Ban Appeals Court WiscoFAST filed notice of appeal the same day. Conley then denied an injunction pending appeal on September 10.7Justia Dockets. Wisconsinites for Alternatives to Smoking and Tobacco, Inc. et al v. Casey, David Oral argument at the Seventh Circuit followed on December 10, 2025.8CourtListener. Wisconsinites for Alternatives to Smoking v. David Casey
What’s Next: A Possible Supreme Court Petition
WiscoFAST has publicly signaled interest in a Supreme Court petition, and the national picture gives that path some traction. Similar directory laws are being fought in three other states, and the results have split.
In Iowa, a federal district judge blocked the state’s law with a preliminary injunction. The Eighth Circuit heard argument in January 2026, with one judge reportedly describing Iowa’s law as “parasitic” of federal law. No decision had issued as of mid-2026.9National Law Journal. 8th Circuit Hears Challenge to Iowa Law Regulating Vape Product Sales2Wisconsin Law Journal. Wisconsin Vape Law Upheld Amid Possible Supreme Court Clash In Virginia, a federal district court granted a preliminary injunction in December 2025, finding the state’s directory law likely preempted because it tied lawful sales to FDA authorization status. The Vapor Technology Association is pressing a parallel challenge to North Carolina’s law in the Fourth Circuit.10Nicotine Insider. Fourth Circuit Tests NC Vape Law, Echoes Virginia
If the Eighth or Fourth Circuit strikes down its state’s law, the resulting conflict with the Seventh Circuit would produce a circuit split, the kind of disagreement among federal appellate courts that often draws Supreme Court review. WiscoFAST and legal observers have pointed to that possibility as the reason a cert petition remains viable despite the losses in Wisconsin.2Wisconsin Law Journal. Wisconsin Vape Law Upheld Amid Possible Supreme Court Clash
What the Law Is Doing to Wisconsin Retailers
The Wisconsin directory launched with roughly 216 products, a small fraction of what most shops previously carried. By mid-2026 it had grown to 345.4Wisconsin Department of Revenue. Electronic Vaping Device Directory An Appleton shop, Top Dogz, cut its selection from more than 200 items to 39.11NBC 26. Wisconsin Vape Ban Forces Fox Cities Smoke Shops to Slash Inventory Hall reported an approximately 80% drop in sales at his own shop.12Spectrum News 1. Vape Law Wisconsin WiscoFAST At least three Wisconsin businesses had closed by mid-September 2025.13GM Today. Vaping Law Lawsuit Wisconsin
Enforcement has been aggressive. The Department of Revenue fined the four-store chain Exclusive Tobacco nearly $13 million after inspectors seized more than 1,200 vaping devices at its Oshkosh location, with a follow-up inspection adding another $431,000 in penalties. Fines are calculated at the statutory rate of $1,000 per device, per day.14Tobacco Reporter. Tobacco Retailer Fined $13M Under Wisconsin’s New Vape Law Davez Smoke and Tobacco in Green Bay was fined nearly $500,000 under the same enforcement regime.15NBC 26. Wisconsin Cracks Down on Vape Shops Selling Illegal Products With Millions in Fines Both Exclusive Tobacco forfeitures are on appeal.16WBAY. Oshkosh Tobacco Chain Fined Millions of Dollars Selling Expired Vaping Devices
The Legislative Track
Alongside the litigation, WiscoFAST has been lobbying the Wisconsin legislature. Hall has urged retailers and consumers to contact lawmakers, arguing the law effectively hands the market to large tobacco companies at the expense of small businesses.17WBAY. Wisconsin Trade Organization Loses Lawsuit Against New Vape Regulations
Only one bill aimed at scaling back the law has moved during the 2025–2026 session. Assembly Bill 234, introduced in May 2025 by Representatives Kurtz and Zimmerman with Senator Testin as cosponsor, would have narrowed the definition of “electronic vaping device” to cover only devices delivering nicotine-containing liquids, rather than the broader Act 73 definition that reaches any aerosolized or vaporized substance.18Wisconsin State Legislature. 2025 Assembly Bill 234 The bill died in March 2026 without passing, and no other amendment or repeal bills advanced during the session.19BillTrack50. WI AB234
For now, Act 73 remains fully in force. The Seventh Circuit ruling stands unless the Supreme Court agrees to hear the case, and rulings pending in the Fourth and Eighth Circuits are the outside events most likely to change that calculus.