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Kentucky’s new anti-vaping law ignites constitutional challenge


Kentucky’s new anti-vaping law ignites constitutional challenge

Apr 16, 2024 | 4:24 pm ET
By Sarah Ladd
Kentucky’s new anti-vaping law ignites constitutional challenge
Only vaping products authorized or pending action by the federal Food and Drug Administration can be sold in Kentucky under a new law that takes effect Jan. 1. (Getty Images)

Four vape shops, the Kentucky Vaping Retailers Association and the Kentucky Hemp Association have filed suit in Franklin Circuit Court seeking to strike down a new state law outlawing the sale of some of their products. 

Greg Troutman, a lawyer for the Kentucky Smoke Free Association, which represents vape retailers, said he’s “hoping that we can get a resolution to this well before” the law is scheduled to take effect Jan. 1. 

“Basically, what we’re asking for is that HB 11 be thrown out, because it’s unconstitutional,” Troutman told the Lantern. 

The lawsuit, which was filed Friday, argues that House Bill 11’s definitions of “vapor products” and “other substances” loop e-cigarettes and vapable hemp and marijuana products together, making it too broad and arbitrary to pass constitutional muster.

It also violates due process by requiring retailers to comply with a nonexistent regulatory process for hemp and other non-nicotine products, Troutman said.

“So how can you condition market approval in Kentucky upon complying with a nonexistent process? That is absolutely Kafkaesque.”

– Greg Troutman, lawyer for Kentucky vape retailers

Retailers will be subject to fines and penalties for selling vapable hemp-derived products once the law takes effect, the lawsuit says. 

HB 11’s backers tout the bill as a way to curb underage vaping by limiting sales to “authorized products” or those that have “a safe harbor certification” based on their status with the Food and Drug Administration (FDA). 

The bill was backed by Altria, the country’s largest manufacturer of cigarettes which also markets FDA-approved vape products. Altria has spent more than $500,000 lobbying the Kentucky legislature since January 2022, according to records filed with the Legislative Ethics Commission.

The suit alleges the new law requires FDA approval for products that cannot possibly win FDA approval because the FDA has no regulatory process for them, such as those containing amanita muscaria (a mushroom) and hemp-derived products. The law would also apply to vapable marijuana products set to become available in Kentucky 2025 under a law the legislature passed last year, the lawsuit says. 

“Unless the manufacturers are making a therapeutic claim — that is, they’re intended to cure, treat, mitigate disease — they’re not subject to an FDA regulatory process,” Troutman said. “So how can you condition market approval in Kentucky upon complying with a nonexistent process? That is absolutely Kafkaesque.”

The U.S. Congress in 2009 enacted the Tobacco Control Act, requiring the FDA to regulate tobacco products to “protect the public health of the U.S. population and create a healthier future.” The FDA began regulating “electronic nicotine delivery systems” — e-cigarettes — under that authority in 2016.  

The suit also alleges the new law violates a provision in the state Constitution limiting laws to one subject. HB 11 is titled an “Act relating to nicotine products” but applies to non-nicotine vaping products such as those derived from hemp, the lawsuit says.

The defendants are Allyson Taylor, commissioner of the Kentucky Department of Alcoholic Beverage Control, and Secretary of State Michael Adams.

In the final days of the session, lawmakers merged HB 11 with Senate Bill 344, which created an e-cigarette registry. The combined bill was signed into law by Gov. Andy Beshear on April 5. Some advocates fear the new law could force more people back to traditional cigarettes, which are worse for bodily health than vaping. 

Vape store owners also testified the law could create a monopoly for big retailers and hurt small businesses. 

A spokeswoman for the House GOP said Tuesday while she could not comment on pending litigation, she believes “the legislature’s efforts to keep potentially dangerous e-cigarettes out of the hands of our children will stand the test.” 

Tobacco use can lead to all sorts of health problems, according to the Centers for Disease Control and Prevention. They include cancer, diabetes, heart disease and more. Nicotine is the addictive chemical in tobacco and can harm the developing brain, the CDC says.

Read the lawsuit

(1) - Petition