Appellate Case: 25-4046 Document: 70-1 Date Filed: 08/31/2026 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 31, 2026
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
UTAH VAPOR BUSINESS
ASSOCIATION, INC., a Utah nonprofit
corporation; THE SMOKE HOUSE LLC,
Plaintiffs - Appellants,
v. No. 25-4046
STATE OF UTAH; UTAH
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, a governmental
entity; UTAH STATE TAX
COMMISSION, a governmental entity;
SPENCER J. COX, Governor, in his
official capacity as Governor for the State
of Utah; DEREK BROWN, in his official
capacity as Attorney General for the State
of Utah; TRACY S. GRUBER, Executive
Director of the Utah Department of Health
and Human Services; SCOTT W. SMITH,
in his official capacity as Executive
Director of the Utah State Tax
Commission,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:24-CV-00950-DBB-JCB)
Appellate Case: 25-4046 Document: 70-1 Date Filed: 08/31/2026 Page: 2
Submitted on the briefs: *
Deno G. Himonas and W. Bradford Barber of Wilson Sonsini Goodrich & Rosati; Phillip W. Dyer and Benjamin R. Dyer of Dyer Law Group PLLC; Trinity Jordan and Jordan E. Westgate of Dentons Durham Jones Pinegar, P.C.; Walter A. Romney and Katherine E. Pepin of Clyde Snow & Sessions; all of Salt Lake City, Utah on the briefs for PlaintiffsAppellants.
Sarah Goldberg, Assistant Solicitor General, and David N. Wolf, Assistant Attorneys General, of Utah Attorney General’s Office, Salt Lake City, Utah on the briefs for Defendants-Appellees.
Before BACHARACH, EBEL, and FEDERICO, Circuit Judges.
EBEL, Circuit Judge.
When the legislature for the State of Utah, following in the footsteps of many
other states and localities, decided to prohibit the sale of flavored e-cigarettes due to
concerns that they led young people to take up smoking, businesses that specialized
in such products raised several concerns in anticipation of the significant economic
impact it would have on their businesses. The two central issues raised here are
whether Utah was preempted from passing such a law by the federal Tobacco Control
Act and whether Utah’s enforcement mechanism, which permitted discretionary
warrantless searches of these businesses, violated the Fourth Amendment. The
district court, at the preliminary injunction stage, ruled in favor of Utah as to the
*
After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See FED. R. APP. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument.
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preemption issue, holding there was no preemption, and in favor of the businesses as
to the enforcement issue, prohibiting the warrantless searches, and each appealed the
respective rulings adverse to them. After the legislature amended the act to alter its
enforcement mechanism, the parties agreed the enforcement issue was moot, leaving
only the preemption issue. But the businesses did not properly appeal the preemption
issue, failing to identify the pertinent order in their notice of appeal. Because in civil
matters an improper notice of appeal leaves this court without jurisdiction, and with
only the improperly noticed issue remaining, we therefore DISMISS the appeal.
I. BACKGROUND
Though much of the lead-up to this appeal is ultimately extraneous to the
jurisdictional issue decided herein, we briefly recount how this case arose and
reached this court.
In March 2024, the Utah legislature passed its Electronic Cigarette
Amendments (the “Act”) to the existing Utah code provisions relating to e-cigarettes.
The heart of these amendments was the new “Flavor Ban,” prohibiting anyone in
Utah from selling e-cigarettes that have a flavor other than tobacco or menthol. The
purpose of this ban, as in many other states and localities, is to avoid encouraging
young people to take up smoking by starting them with flavorful e-cigarettes. The
Flavor Ban makes it a misdemeanor to sell flavored e-cigarettes in Utah. Prior to the
2024 amendments, general tobacco retailers—such as gas stations—were already
prohibited from selling flavored e-cigarettes under the Utah code. Only Retail
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Tobacco Specialty Businesses (“RTSB”) were previously permitted to sell flavored ecigarettes, so that is the group targeted by the Flavor Ban.
Plaintiffs are a group of RTSBs. Up until the 2024 amendments, Plaintiffs
claim that 89% of their business was selling flavored e-cigarettes. Therefore, the
Flavor Ban is expected to have a significant impact on their customer base, and they
claim at least some RTSBs in Utah have already been forced to close. That said,
Plaintiffs claim that only one local health department has in fact enforced the Flavor
Ban to date.
Plaintiffs contend the Flavor Ban is preempted by the Federal Family Smoking
Prevention and Tobacco Control Act (“TCA”), and thus violates the Supremacy
Clause. Prior to the TCA’s enactment, tobacco regulations were almost exclusively
the province of states and municipalities. See R.J. Reynolds Tobacco Co. v. Cnty. of
Los Angeles, 29 F.4th 542, 547 (9th Cir. 2022). But through the TCA, Congress
sought to give the Food & Drug Administration a role in adopting and enforcing
nationwide regulations on the tobacco manufacturing and labeling processes. Id. at
550. One area reserved to federal regulation is setting “tobacco product standards.”
Id. at 551. Plaintiffs argue that the Flavor Ban is a tobacco product standard, and
thus the TCA preempts Utah from enacting it.
Utah’s 2024 amendments also included an “Inspection Program” to assist in
the enforcement of the Flavor Ban. Specifically, it authorized local health
departments to search tobacco retailers’ entire premises during business hours for
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evidence of violations. Plaintiffs argued that this Inspection Program violated their
Fourth Amendment rights to be free from unreasonable searches.
Plaintiffs brought suit against Defendants, those state entities and officials
responsible for enforcing the Act, in the federal district court for the District of Utah.
While litigation proceeded, Plaintiffs sought preliminary injunctions against both the
Flavor Ban and the Inspection Program. The parties agreed to a Temporary
Restraining Order (“TRO”) while the district court considered the preliminary
injunction requests. After a hearing on both, the district court denied preliminary
injunctive relief to the Plaintiffs with respect to the Flavor Ban but requested
supplemental briefing on the Inspection Program. The district court later granted
preliminary injunctive relief to the Plaintiffs with respect to the Inspection Program.
But the district court determined that the Inspection Program was severable from the
rest of the Act, so it did not enjoin any other part of the Act.
Both parties appealed. Plaintiffs appealed the district court’s denial of
preliminary injunctive relief as to the preemption issue. Plaintiffs also appealed the
district court’s severability finding, arguing instead that if the Inspection Program
was unconstitutional, the entire Act should be enjoined. Meanwhile, Defendants
cross-appealed the district court’s grant of preliminary injunctive relief as to the
Inspection Program, arguing that it did not violate the Fourth Amendment.
Notably, on May 6, 2026, an amendment to the Act took effect, changing the
Inspection Program such that both parties agree it no longer presents a Fourth
Amendment issue. Therefore, Defendants’ cross-appeal of the Inspection Program
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ruling is moot, and Plaintiffs’ appeal of the severability finding is moot. Defendants
filed a stipulated motion to dismiss these two moot issues, which we already granted.
All that remains of the appeal, then, is the question of whether the TCA preempts the
Flavor Ban.
II. JURISDICTION
Typically, under 28 U.S.C. § 1291, courts of appeals have jurisdiction to
review only “final decisions” of district courts. See Crowe & Dunlevy, P.C. v.
Stidham, 640 F.3d 1140, 1147 (10th Cir. 2011). An exception exists, however, for
interlocutory orders granting or denying motions for preliminary injunctive relief.
Id.; 28 U.S.C. § 1292(a)(1). These interlocutory orders are immediately appealable.
Crowe, 640 F.3d at 1147.
Like all appeals, though, there are rules that govern when and how a party
must file an appeal of such an order. As relevant here, Plaintiffs’ notice of appeal
had to identify the appealable district court orders that they were challenging. FED.
R. APP. P. 3(c)(1)(B). And because this is a civil case, rather than criminal,
compliance with this rule is jurisdictional and not waivable, meaning failure to
comply strips this court of authority to address the appeal. Bowles v. Russell, 551
U.S. 205, 214 (2007); Emann v. Latture (In re Latture), 605 F.3d 830, 834–35 (10th
Cir. 2010).
III. DISCUSSION
Before entertaining the merits of Plaintiffs’ preemption argument, we must
first assure ourselves that we have jurisdiction to address it. We conclude that
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Plaintiffs’ appeal fails at the jurisdictional step because their notice of appeal did not
identify the district court’s order denying a preliminary injunction of the Flavor Ban.
Thus, we cannot proceed to the merits. 1 We write further to clarify how litigants
appealing separate, appealable interlocutory orders must proceed.
Federal Rules of Appellate Procedure 3 and 4 direct the filing of appeals.
Specifically, Rule 3, which sets out the contents of a notice of appeal, requires a
notice of appeal to “designate the judgment—or the appealable order—from which
the appeal is taken.” FED. R. APP. P. 3(c)(1)(B). “Compliance with Federal Rule of
Appellate Procedure 3, specifying the contents of a notice of appeal, is jurisdictional
and cannot be waived.” Constructora Andrade Gutierrez, S.A. v. Am. Int’l Ins. Co.
of Puerto Rico, 467 F.3d 38, 43 (1st Cir. 2006) (citing Torres v. Oakland Scavenger
Co., 487 U.S. 312, 317 (1988)), superseded by rule on other grounds as recognized in
Gonpo v. Sonam’s Stonewalls & Art, LLC, 41 F.4th 1, 9‒12 (1st Cir. 2022).
Though “the requirements of the rules of [appellate] procedure should be
liberally construed and . . . mere technicalities should not stand in the way of
consideration of a case on its merits,” Torres, 487 U.S. at 316 (internal quotation
marks omitted), we note here that Plaintiffs’ notice of appeal made no mention of the
district court’s order on the Flavor Ban. Plaintiffs’ notice of appeal states it is an
1
Four of our sister circuits have addressed the same preemption argument, all rejecting Plaintiffs’ contention. See Nat’l Ass’n of Tobacco Outlets, Inc v. City of Providence, 731 F.3d 71 (1st Cir. 2013); U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 708 F.3d 428 (2d Cir. 2013); R.J. Reynolds Tobacco Co. v. Cnty. of Los Angeles, 29 F.4th 542 (9th Cir. 2022); R.J. Reynolds Tobacco Co. v. City of Edina, 60 F.4th 1170 (8th Cir. 2023) (per curiam).
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appeal to the United States Court of Appeals for the Tenth Circuit from
(1) the district court’s Order Granting in Part Motion for Temporary
Restraining Order and Preliminary Injunction [ECF No. 55] entered on
March 24, 2024; (2) the district court’s Order Granting Preliminary
Injunction [ECF No. 56] entered on March 24, 2024; (3) the district
court’s Docket Text Order (Dissolving Temporary Restraining Order)
[ECF NO. 57] entered on March 24, 2024; and (4) any and all underlying
issues, rulings, decisions, and orders of the district court ancillary,
subsidiary, or merged thereto.
Pls.’ Notice of Appeal, ECF No. 61 (Apr. 21, 2025) (emphasis added). Absent from
this list is the district court’s order denying a preliminary injunction of the Flavor
Ban, ECF No. 44, entered on February 13, 2024. Therefore, the notice of appeal fails
even this circuit’s “functional equivalent” test, which overlooks a “filing that is
technically at variance with the letter” of Rule 3 so long as “it contains the . . .
elements of notice required by Rule 3(c).” Berrey v. Asarco Inc., 439 F.3d 636, 642
(10th Cir. 2006) (internal quotation marks, alteration omitted). 2
As in Kotler v. American Tobacco Company, the notice “makes no reference
to the district court’s” February 13 order and “[i]nstead, it specifically references the
district court’s entirely separate order of” March 24, 2024. 981 F.2d 7, 11 (1st Cir.
1992). “Omitting the preemption order while, at the same time, designating a
2
“When a notice of appeal fails to designate the order from which the appeal is taken, our jurisdiction will not be defeated if other papers filed within the time period for filing the notice of appeal provide the ‘functional equivalent’ of what Rule 3 requires.” Denver & Rio Grande W. R.R. v. Union Pac. R.R., 119 F.3d 847, 849 (10th Cir. 1997) (quoting Torres, 487 U.S. at 317). Given the lack of any timely filing relating to the preemption issue, however, we have no other source to which to look.
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completely separate and independent order loudly proclaims plaintiff’s intention not
to appeal from the former order.” Id.
It is true that “a notice of appeal which names the final judgment is sufficient
to support review of all earlier orders that merge in the final judgment.” McBride v.
CITGO Petroleum Corp., 281 F.3d 1099, 1104 (10th Cir. 2002) (emphasis added).
That is because generally “‘all earlier orders . . . merge in the final judgment,’” such
that “[h]aving appealed from the judgment, the appellant is free to attack any
nonfinal order or ruling leading up to it.” Montgomery v. City of Ardmore, 365 F.3d
926, 934 (10th Cir. 2004) (quoting McBride, 281 F.3d at 1104). That general rule is
not implicated here because this appeal related to two separate interlocutory orders,
not to an interlocutory order and a final judgment. The commentary to the appellate
rules describes the concept of merger as “a corollary of the final judgment rule: a
party cannot appeal from most interlocutory orders, but must await final judgment,
and only then obtain review of interlocutory orders on appeal from the final
judgment.” Fed. R. App. P. 3 advisory committee’s note to 2021 Amendment. But
while “because of the merger principle, it is appropriate to designate only the [final]
judgment” when a prior interlocutory order merges into a final judgment, “where an
appeal from an interlocutory order is authorized, the notice of appeal must designate
that appealable order.” Id.
Ultimately, the parties leave this court with nothing capable of review. Future
plaintiffs facing similar circumstances are advised to file a notice of appeal that
identifies explicitly each appealable interlocutory order that they seek to challenge.
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IV. CONCLUSION
Because we lack jurisdiction to address the only remaining issue presented to
us, we DISMISS the appeal.
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