How the Federal Government Pursues Illegal E-Cigarette Sellers
The legal architecture for federal enforcement against unauthorized e-cigarettes is broader than most coverage of the issue suggests. A March 2026 GAO report (GAO-26-107991) maps out the full range of tools available to the Department of Justice—and which ones actually get used.
The Legal Basis
Two statutes form the primary framework. The Federal Food, Drug, and Cosmetic Act prohibits the distribution of e-cigarette products that are adulterated or misbranded in interstate commerce. Under FDA’s 2016 rule extending its tobacco authority to e-cigarettes, any product sold without FDA premarket authorization is automatically considered adulterated and misbranded—meaning the unauthorized status of a product is itself the legal violation, not any separate showing of harm or deception.
The Prevent All Cigarette Trafficking Act of 2009, expanded in 2021 to cover e-cigarettes, prohibits sales that fail to comply with excise tax, shipping, and age verification requirements. It also requires e-cigarette delivery sellers—anyone making remote or online sales to consumers—to register with the Attorney General, and mandates that DOJ maintain and distribute a list of those who have failed to register or comply.
Beyond these two statutes, DOJ can also pursue enforcement under general criminal law: conspiracy, wire fraud, and trafficking in counterfeit goods, depending on the facts of a given case.
The Tools
The GAO report identifies five distinct enforcement mechanisms DOJ has actually used:
Statutory injunction proceedings are the most aggressive civil tool. DOJ seeks a federal court order halting the flow of unauthorized products in interstate commerce and requiring the defendant to address the conditions that enabled the violation. Courts have ordered defendants in these cases to destroy their unauthorized inventory and obtain FDA authorization before selling any new tobacco product. Twenty of DOJ’s 88 enforcement actions took this form.
Civil forfeiture actions allow DOJ to seize and remove unauthorized products from the market without necessarily pursuing criminal penalties. Thirteen such actions were filed, culminating in a September 2025 sweep that seized more than 2.1 million illicit vaping products from five distributors and six retailers across seven states. A 2024 California forfeiture—the first-ever coordinated FDA-DOJ-U.S. Marshals action on tobacco products—seized over 45,000 unauthorized e-cigarettes valued at roughly $703,000 from a single warehouse.
Civil penalty actions under the Prevent All Cigarette Trafficking Act allow DOJ to seek financial penalties either in federal court or administratively. Four such actions resulted in approximately $2.1 million in settlements.
Criminal prosecutions are rare—one case in the entire four-year period. A Texas vape shop owner pleaded guilty to trafficking in counterfeit vaping devices imported from Chinese manufacturers and received five years’ probation.
Placement on the noncompliant delivery sellers list is by far the most commonly used mechanism, accounting for 57 percent of all actions (50 of 88). ATF is required to distribute this list to state attorneys general, common carriers including FedEx and UPS, and the U.S. Postal Service. Recipients are generally prohibited from delivering e-cigarette products for any entity on the list—effectively cutting off the distribution channels for online sellers who fail to register or comply with the act.
Who Does What
Three DOJ entities carry the enforcement load. The Civil Division—specifically its Enforcement and Affirmative Litigation Branch, which replaced the Consumer Protection Branch in a September 2025 reorganization—handles civil judicial actions, primarily working from FDA referrals. U.S. Attorneys’ Offices handle both civil and criminal cases in their geographic jurisdictions, typically receiving referrals from ATF, FDA, and state and local law enforcement. ATF maintains the noncompliant delivery sellers list, issues civil penalties, and conducts investigations—or did, prior to the February 2025 resource reallocation.
The system’s dependency on FDA as the upstream referral source for Civil Division cases is a structural vulnerability the report flags directly: any reduction in FDA’s attorney capacity to prepare and send referrals would cascade into reduced DOJ enforcement capacity, regardless of DOJ’s own resource levels.