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Nam Y. Huh, AP Photo, File

Utah judge temporarily overturns partial ban on flavored vaping products

By Jacob Klopfenstein, KSL.com | Updated - Oct 28th, 2019 @ 10:57am | Posted - Oct 28th, 2019 @ 8:22am



SALT LAKE CITY — A judge has issued a temporary restraining order against a Utah Department of Health rule that would have, on a temporary emergency basis, banned general tobacco retailers from selling flavored vaping and e-cigarette products.

District Court Judge Keith Kelly issued the order Monday morning in 3rd District Court in Salt Lake City. The order took effect at 8 a.m., according to court documents.

The health department is now prohibited from implementing and enforcing the rule, according to the order.

The health department issued a statement explaining the emergency rule on Oct. 2. It allowed only specialty stores to sell flavored vaping products but banned general tobacco stores — stores that sell other products in addition to tobacco items — from selling them.

It also required stores that sell e-cigarette products to post signs at their stores warning against the dangers of vaping unregulated THC products.

The purpose of implementing the rule was to help stop the outbreak of vaping-related lung diseases, which is one of the health department's top priorities, the agency said Monday in a statement.

Owners of several general tobacco retailers filed a lawsuit and restraining order to overturn a portion of the rule.

They sought to overturn the rule banning sales of products, but did not seek to end the mandatory posting of signs warning against unregulated THC products at stores, according to Monday's ruling. Therefore, those signs will stay in place.

The group of shop owners sought to end the rule in part because, as "general tobacco retailers," they could no longer sell flavored vape products. However, "retail specialty tobacco businesses" — those that exclusively sell tobacco products — were not affected by the health department's rule.

The shop owners argued that they would likely go out of business due to revenue loss from being unable to sell the flavored tobacco products prohibited by the rule, while seeing customers instead go to competitors who were still allowed to sell the products, according to the order.

In its reasoning for implementing the rule, the health department argued that since sales of tobacco products can only make up to 34% of sales at general tobacco retailers, the harm to the businesses would not be "irreparable," according to the order.

However, the business owners argued that they would "lose most, if not all, of the goodwill that they have developed through significant capital expenditure, word of mouth, customer service, and business management," according to the order. The business owners also argued that their many repeat customers would stop coming to their stores if the rule stayed in place.

Specialty retailers that only sell tobacco products would have a "distinct competitive advantage" over general retailers since they were not prohibited from selling flavored vaping and e-cigarette products, the business owners argued in the case.

The normal rulemaking process for the department of health would include a public comment period, and the rule would not become effective for at least 120 days after the announcement of the rule, according to the order.

In order to implement an emergency rule and forgo that 120-day process, the health department had to prove that following that process would "cause an imminent peril to the public health, safety, or welfare," according to the order.

However, the health department's rule analysis lacks justification that limiting the sale of flavored products would halt vaping-related lung diseases, the order states. Instead, the health department mostly links the diseases to the consumption of unregulated THC products, the order states.

Those THC products are illegal to sell in Utah and are obtained via the black market, so limiting sales of legal flavored products likely wouldn't halt the disease outbreak, the order states.

"In sum, there are no findings or conclusions presented in UDOH's analysis that determine, find or establish any evidentiary link or nexus between the recent wave of illnesses and Utah's adults allegedly vaping only legal flavored vape products," the order states.

Agencies are also required to consider if rules they propose "will have a measurable negative fiscal impact on small businesses," according to the order. If they determine a rule might negatively impact small businesses, they're required to consider specific "methods of reducing the impact of the rule on small businesses," the order states.

In a statement Monday morning following the ruling, the health department said it is disappointed in the ruling.

"We will continue with other efforts to stop this outbreak and to protect the public's health," the statement said. "However, in accordance with today's ruling, we will notify local health departments to cease enforcement of the emergency rule for the time being. We look forward to presenting our arguments in future hearings."

The health department's statement also said the plaintiffs in the suit represent a small minority of Utah tobacco businesses. Most tobacco retailers and shops are already complying with the rule, and the health department will encourage them to remain in compliance, the statement added.

A preliminary injunction hearing in the case is scheduled for Nov. 22, according to court records. The restraining order against the department of health will remain in place until that hearing.

Contributing: Felicia Martinez, KSL TV

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