We’ve talked before about an e-cigarette law in Indiana that caused anywhere from 50-100 vape businesses in to close. Now, a recent court decision ensured that Indiana’s terrible vaping regulations will go down in infamy.

After months of legal battle, a federal court finally determined that a large portion of the regulations were unconstitutional. It’s a huge win for vapers all across country, because it sets a limit on what kinds of rules states can place on e-cigarette manufacturers. It sets a precedent that all states will have consider and follow before passing strict regulations on the vaping industry.



Indiana’s Unconstitutional Rules for E-cigarette Manufacturers



Before you can understand the court’s decision, you have realize how incredibly strict Indiana’s law is. It places extremely specific and stringent requirements on e-cigarette and e-liquid manufacturers that most people found baffling.

In his decision, Judge David Hamilton described the law as “written so as to have extraterritorial reach that is unprecedented, imposing detailed requirements of Indiana law on out-of-state manufacturing organizations.”

Some of the outrageously stringent requirements included 24-hour video surveillance of all facilities and warehouses, and mandated “clean rooms” usually only required for food manufacturers. But the requirements got even more specific than that; the law included specific requirements for minute details like particular sinks and cleaning products.

Supporters of the law argued that these regulations were necessary to ensure safety and cleanliness standards. But others pointed out that the rules for e-cigarette manufacturers were much more strict even than rules for food and drink manufacturers.



As it turns out, opponents of the legislation were right, and the law’s requirements reached far beyond what Indiana could legally enforce. The court struck down the strict manufacturing regulations, saying that they could not be enforced against out-of-state businesses without violating the interstate Commerce Clause.

According to Cornell Law, the Commerce Clause is a portion of the Tenth Amendment to the US Constitution that protects “against states passing legislation that discriminates against or excessively burdens interstate commerce.”

In particular, the Commerce Clause prohibits “protectionist state policies that favor state citizens or businesses at the expense of non-citizens conducting business within that state,” which is a spot-on description of exactly what Indiana’s law did.

What Does This Decision Mean?

As Greg Troutman, one of the attorneys representing vapor manufacturers in the lawsuit, explained, “This decision really defines what a state can and cannot do in terms of regulating state manufacturing.”

Essentially, states can’t tell e-cigarette manufacturers in other states how to run their businesses. While they may be able to levy taxes on out-of-state businesses and screen out-of-state product for safety and quality, mandating exactly how they must operate their manufacturing facilities takes it a step too far.

When Indiana first passed the controversial legislation, vapers everywhere worried that it was a sign of things to come. But this court decision ensures that no other states will dare to go as far as Indiana did.

All states will have to consider these limitations before enacting e-cigarette regulations, and if any other laws that unfairly regulate out-of-state businesses manage to get through, businesses will have a strong case for suing and striking them down.

Unfortunately, e-cigarette manufacturers located within the state of Indiana will still have to follow the stringent regulations of the law. However, before the law went into effect, more than 99% of vapor products sold in Indiana came from out of state. Thus the decision affects the vast majority of manufacturers wanting to sell products in Indiana.

Still More Problems to Address

Unfortunately, the court decision didn’t address some other serious problems with the law that have caused outrage and led to corruption investigations. Until recently, most criticisms of Indiana’s vaping regulations have targeted the fact that the law created a monopoly, where only one private business could contract with vapor manufacturers, which is a requirement for selling vapor products in the state.

The lawmakers who supported the bill claimed they did not realize the law would result in only six vapor product manufacturers being able to do business in the state. However, other lawmakers claimed that the potential for a monopoly was a well-known concern among everyone working on the bill, and even the court’s opinion stated that the law looks “very much like a legislative grant of a monopoly to one favored in-state company in the security business.”



Even though out-of-state manufacturers will not have to comply with the strict manufacturing standards in the original law, they still might not be able to sell product in Indiana. One private firm still holds a monopoly over the industry, and it is unlikely that any more manufacturers will be able to get licenses until that changes.

Indiana lawmakers have promised to fix the monopoly they created, but so far they have made little progress. They have proposed two different bills to amend the law, but one of them still leaves the problematic system of private firms—what caused the problem in the first place—intact.

What is Indiana Going to Do Now?

The ecigarette regulations turned into a minefield that Indiana lawmakers didn’t fully expect, and now they are scrambling to make amends. Two different laws have been proposed to amend the legislation, but both of these were crafted before the judge’s recent rulings.

Indiana lawmakers may choose to keep the strict manufacturing regulations for in-state manufacturers, but they would be wise to do away with them altogether. Since they can no longer enforce the requirements for out-of-state companies, the only thing that strict manufacturing rules would do is drive business out of the state.

Some Indiana lawmakers, including Speaker Brian Bosma, have promised a bill that will eliminate the requirement for manufacturers to be approved by private firms, and thus the monopoly, but only time will tell if the amendment will go through.

This law brought up so many legal and ethical issues that it has turned into a huge black mark on the Indiana legislature and has motivated calls for ethical reform. But the good news is that, because of the lawsuit and ongoing media coverage of the fiasco, Indiana’s failures will serve as an example of how not to regulate e-cigarettes for years to come.

It’s Not Over Until It’s Over

This is a lesson for lawmakers, anti-vape activists who want to push the limits of fair regulation. It’s not always possible to prevent legislative overreach, it doesn’t always violate a law or constitutional clause.

Often the corruption is glaringly obvious, as it was in Indiana. But you have to do more than show that it’s unethical and unfair. To get a law actually struck down in court, you have to prove it actually violates a law or regulation.



It takes time, money, and effort to bring unjust laws the proper attention they need, which is why the grassroots efforts of Americans for Tax Reform and other organized groups are so important.

It’s often much easier to generate hype about an unjust law when it’s still being decided, when there’s still time to change lawmaker’s minds and the issue is still in the air.

But after the law has passed, it’s much harder to keep people engaged. Without groups of people working together to keep the dialogue and activism alive, the story that was once front-page news will fade into obscurity.

It takes a lot of legwork to get something through the court system, and a lot of clout to bring a lawsuit against a major state government body. The larger our numbers, the more passionate our voices, the better our chances of defeating harmful and unnecessarily restrictive vaping policies.

