United States Court of Appeals for the Fifth Circuit _____________ United States Court of Appeals Fifth Circuit

No. 25-60694 FILED consolidated with February 11, 2026 No. 26-60013 Lyle W. Cayce _____________ Clerk

Vapor Technology Association; MS Small VTC Businesses Association Corporation, doing business as MS Small Businesses Alliance; Hema Monica, L.L.C.; The Smokey Guys, Incorporated; Byram Vape Empire, Incorporated; MS Vapors, L.L.C.; Vape Empire, Incorporated; Smoke City Lucedale, L.L.C.; Revive Lucedale, L.L.C.; Revive Hurley, L.L.C.; TJ Patel, L.L.C.; NUP 2, L.L.C.,

Plaintiffs—Appellants, versus

Chris Graham, Mississippi Commissioner of Revenue, Defendant—Appellee. ________________________________

Appeals from the United States District Court for the Southern District of Mississippi USDC No. 1:25-CV-336 ________________________________

PUBLISHED ORDER

Before Stewart, Willett, and Wilson, Circuit Judges.

Don R. Willett, Circuit Judge: A group of retailers, distributors, and trade associations in the electronic nicotine industry sued to enjoin enforcement of Mississippi House Bill 916. But Article III standing is a prerequisite to our jurisdiction—and the challengers have not established it here. We therefore DENY their motion for an injunction pending appeal.

I In March 2025, Mississippi Governor Tate Reeves signed H.B. 916 into law. The statute requires the State’s Commissioner of Revenue to maintain a directory listing only FDA-approved electronic nicotine devices.^[1] Products not included in the State’s directory generally may not be sold at retail in Mississippi, 2 and manufacturers must certify that their devices have received FDA approval. ^[3] Violations carry both civil and criminal penalties. ^[4]

Dissatisfied with the new law, two industry trade associations, one distributor, and nine retailers sued the Commissioner in federal court. ^[5] They alleged that H.B. 916 violates their constitutional rights, interferes with the FDA’s regulation of electronic nicotine devices, and is preempted by the Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq. The day after filing No. 25-60694 c/w No. 26-60013 No. 25-60694 c/w No. 26-60013

conduct; and (3) redressability—that the injury will “likely” be “redressed by a favorable decision.” 13 B Here, Plaintiffs fail to identify an injury in fact. Although they argued financial injury in the district court, Plaintiffs do not press that theory on appeal and have therefore forfeited it. 14 On appeal, Plaintiffs instead assert that their legally protected interest “is not in committing a crime, but in enforcing the Constitution.” They contend that H.B. 916 contravenes federal law that preempts state enforcement of FDA regulations. And because preemption doctrine derives from the Supremacy Clause, Plaintiffs characterize the alleged injury as constitutional. 15 True, constitutional injuries can create standing. ^[16] But even constitutional injuries must be concrete and particularized—more, they must belong to the plaintiff, not the public at large. ^[17] As the Supreme Court has repeatedly emphasized, plaintiffs may not “establish standing simply by No. 25-60694 c/w No. 26-60013

claiming an interest in governmental observance of the Constitution.” 18 Instead, they must allege “a particular and concrete injury” to a “personal constitutional right.” 19 Plaintiffs do not do so here. Rather than identify a particularized constitutional injury of their own, they assert a generalized grievance: that Mississippi has enacted and seeks to enforce a statute allegedly inconsistent with federal law. But a generalized interest in constitutional governance, standing alone, is insufficient to confer standing. Article III bars federal courts from resolving such abstract disputes. C The federal regulatory backdrop confirms the absence of any individualized injury. Federal law prohibits manufacturing or selling electronic nicotine devices that the FDA has not approved. Under the Family Smoking Prevention and Tobacco Control Act (TCA), the FDA regulates “cigarettes, cigarette tobacco, roll-your-own-tobacco, and smokeless tobacco,” as well as “any other tobacco products that the Secretary by regulation deems to be subject to” the TCA. 20 In 2016, the FDA extended that authority to all electronic nicotine delivery systems, including those No. 25-60694 c/w No. 26-60013

containing synthetic nicotine. ^[21] The TCA further requires that tobacco products not on the market as of February 15, 2007, receive FDA authorization before entering commerce—confirming that electronic nicotine devices qualify as “tobacco products” subject to federal approval.^[22] That federal scheme underscores why Plaintiffs’ asserted injury rests not on any individualized harm, but on a generalized disagreement with Mississippi’s enforcement choices. Plaintiffs insist that they need only show an interest “arguably within the zone of interests to be protected or regulated by the statute.” 23 But that doctrine, where applicable, operates as a prudential limitation on statutory causes of action; it does not displace the Constitution’s irreducible requirement of an injury that is “concrete,” “particularized,” and “actual or imminent.” 24 IV Because Plaintiffs assert only a generalized theory of constitutional injury—one that Supreme Court precedent squarely forecloses 25—we hold No. 25-60694 c/w No. 26-60013

that they lack Article III standing and thus cannot succeed on the merits. ^[26] Accordingly, we decline to enjoin enforcement of H.B. 916 and DENY the motion for an injunction pending appeal.