Nam Y. Huh, AP Photo, File

Utah among states facing lawsuits from vape retailers after flavor ban

By Ashley Imlay, KSL | Posted - Oct 22nd, 2019 @ 8:40pm


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SALT LAKE CITY — A group of local vape retailers on Tuesday filed a lawsuit against the Utah Department of Health protesting the department’s emergency rule that bans flavored e-cigarettes.

“(Utah Department of Health) has no scientific evidence that vaping flavored electronic cigarette products is the cause of the recent illnesses that underpins the reason for the emergency rule,” the lawsuit states.

VIP Vapors of Orem, Alternatives, Empire Merchandise Company SLC, Vapor Utah, Greater Salt Lake Top Stop, ASAL Enterprises, and V.O.S. Retail are all among the vape shops suing the health department and Dr. Joseph Miner, its executive director.

The businesses are asking the court to stay rule, as well as an award of attorney’s fees.

As a result of the rule, the retailers say they likely “will be forced to close their businesses” as a substantial portion of their sales comes from flavored e-cigarette products.

In a statement Tuesday, the health department said: “While we won’t speak directly to the claims made by the plaintiffs in their lawsuit, we can say protecting the public’s health by stopping the outbreak of vaping-related lung injuries is our top priority.

“As we have stated previously, vaping THC cartridges appears to be a driver of the outbreak. We know people who vape nicotine are significantly more likely to use THC products, and we know the outbreak has hit youth and young adults hard. So, if we can reduce youth access to nicotine vaping products we can also reduce the number of people who may eventually move on to using THC products.”

As of Monday afternoon, 98 cases of the mysterious illness and one death had been reported in Utah, according to the health department. Most of the cases have been linked to the use of THC cartridges, but the exact cause of the illness remains unknown.

Utah isn’t the only state dealing with fallout after placing new restrictions on the e-cigarette industry. In Massachusetts, six vape shops are suing the state in response to a ban on all vaping products, including marijuana and tobacco, the Wall Street Journal reported.

A lawsuit is also pending in New York after retailers sued the state as a result of a similar ban on flavored e-cigarette products, according to CNN.

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In response to the rash of illnesses in the state and nationwide, the Utah Department of Health early this month filed the emergency administrative rule aimed at stemming the vaping-related illness.

Vape stores and other retailers that sell vaping products in Utah as of Monday are required to post a notice warning consumers about potential lung injuries related to electronic cigarette use. The rule also restricts the sale of flavored e-cigarette products to retail tobacco specialty businesses. The restrictions are expected to remain in place for 120 days.

The Utah retailers’ lawsuit alleges they have been deprived of their rights to due process, as they were not given the opportunity to comment on the rule before its implementation.

Additionally, the retailers say the Electronic Cigarette Regulation Act does not allow the health department administrative rulemaking authority regarding flavored electronic cigarette products.

In a report on the investigation into the illness, the health department does not link the recent spate of lung illnesses to flavored electronic cigarette products. Instead, it links the lung illnesses to black market THC cartridges, according to the lawsuit.

There’s no evidence that an “emergency” exists linking flavored e-cigarette use to the illness that would warrant “the draconian implementation of an emergency administrative rule,” the lawsuit alleges.

The rule bypassed “the ordinary administrative rulemaking process or affording plaintiffs any right(s) to due process before depriving them of their vested property interests in and to their license to sell electronic cigarette products including flavored electronic cigarette products,” the lawsuit alleges, which goes on to assert it has not been looked at by the Utah Legislature’s Administrative Rules Committee.

According to the lawsuit, the retailers and their attorneys met with representatives from the department to talk about “legal issues” with the rule on Oct. 15, but the department still declined to delay the rule’s enforcement.

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