Virginia’s New Vapor Product Directory: What Retailers and Manufacturers Need to Know by the End of 2025
The vapor products market continues to face regulatory challenges, and Virginia vapor retailers and distributors are likely to take a big hit by year end. We previously reported on FDA’s continued crack down of illicit vapor products – those that have not received marketing authorization as required by the Tobacco Control Act. In reality, this category includes the majority of vapor products seen on smoke shop shelves today. In light of FDA’s limited enforcement actions in this area, states have taken it upon themselves to pass laws limiting which products may be sold in the state.
Virginia is now joining approximately 14 other states in rolling out a state-maintained Liquid Nicotine & Nicotine Vapor Product Directory. In accordance with legislation passed that became effective July 1, 2025, the Virginia Attorney General’s Office will publish by December 31, 2025 a directory of products that have been certified for sale in the Commonwealth. After that date, if a product isn’t on the list, it will not be lawful for sale at retail in Virginia.
The directory and who’s covered
According to the new law, the Attorney General must establish and maintain a public, online directory identifying (1) manufacturers of liquid nicotine and nicotine vapor products and (2) each certified SKU that’s cleared for sale. Certifications may be submitted by manufacturers of the products or by an intermediary such as a wholesaler or retailer. The certification form asks whether the manufacturer has received marketing authorization from FDA for the liquid nicotine or vapor product or whether the manufacturer timely submitted a premarket tobacco application (PMTA) to FDA and that application was accepted and remains under review by FDA. The applicant must also provide an FDA submission tracking number and supporting documentation with the certification form.
Only products that either have marketing authorization or a timely submitted PMTA may be listed on the directory. The directory must be updated by the AG as needed and made available for public inspection. Initial certifications require a fee of $2,000 per SKU, and certifications must be renewed annually for $500 per SKU. The AG’s implementation page confirms that the AG’s office is currently accepting certification forms.
Penalties for Sale of Products not on the Directory
Virginia’s rule is straightforward: No listing, no retail sale. After publication of the directory, retailers will have a 60-day sell-through period within which to sell current stock of products not on the directory. After that sell-through period, no person may sell, distribute, import for resale, or offer for sale any liquid nicotine or nicotine vapor product unless that specific product appears on the directory. The law also separately prohibits manufacturers from selling (directly or through wholesalers/distributors/retailers) any product not on the directory.
Retailers will be subject to compliance checks for the purpose of enforcing the new directory law. If a retailer (or any “person” engaged in sale or distribution) offers a product that isn’t listed, the business is subject to a civil penalty of $1,000 per day for each non-listed product. Given the number of individual products that may be noncompliant, these penalties can quickly add up. Local prosecutors may also recover investigation costs and attorneys’ fees for actions enforcing the statute.
Manufacturers face the same $1,000 per day per product civil penalty if they sell into Virginia (directly or via intermediaries) products that aren’t on the directory, with the penalty clock running until the product is removed or properly listed. Practically, this means manufacturers that ship nationwide must put Virginia-specific controls in place before the directory goes live.
Legal Challenges
As vapor product directories have become more common across states, legal challenges have mounted. Industry groups essentially argue that this type of enforcement is specifically reserved for FDA by the Tobacco Control Act. Courts are starting to split on the issue, indicating a possible future Supreme Court weigh-in. In Kentucky, industry plaintiffs sued to block a registry law but the challenge was dismissed in district court and subsequent appellate proceedings have so far favored the state’s enforcement stance. In Iowa, however, a federal court recently stayed enforcement of the state’s directory while litigation proceeds. Industry groups have filed suits in Wisconsin and other states seeking to delay or block enforcement of registry statutes that prohibit sale of products not appearing on a state list.
We don’t, however, advise that retailers wait for the outcome of litigation to implement a plan for compliance with Virginia’s new directory statute.
Next Steps
If you are a retailer or distributor of vapor products in Virginia, this new law may significantly impact your business. The list of products with FDA marketing granted orders is short and it may be challenging for a retailer to understand which products have timely-submitted PMTAs. Contact Christina Sava in our Regulated Industries Practice Group for assistance:
- Identifying which products you sell are subject to the law;
- Identifying which of the products you sell are already compliant;
- Which of the products you sell have potential to become compliant;
- Conducting due diligence on your suppliers regarding the new law;
- Finding new compliant products to sell if and when Virginia’s directory goes into effect.
