New restrictions on vape sales in Kentucky win approval with tobacco industry backing

FRANKFORT — A bill to curb underage vaping, which opponents say will hurt small businesses and encourage  a “monopoly,” got in under the wire Thursday night, winning approval in the final hours before lawmakers broke until mid-April. 

Changes to House Bill 11 made earlier in the day by the Senate Judiciary Committee — including lessening the proposed penalties for selling vaping products to those under 21 — disappointed some advocates for children who had pushed for stronger compliance checks.

The bill, which would take effect next year, limits vaping products that can be sold in Kentucky to those that have approval from the U.S. Food and Drug Administration, have applied for FDA approval or are challenging denial of FDA approval. 

Altria, the parent company of tobacco giant Phillip Morris, lobbied for the Kentucky bill, according to Legislative Ethics Commission records. Based in Richmond, Virginia, the company is pushing similar bills in other states. Altria, which has moved aggressively into e-cigarette sales, markets multiple vaping products that have FDA approval. 

Speaking against the bill, Sen. David Yates, D-Louisville, said its weak enforcement provisions will not protect youngsters. “I just think we can do a better job, we can go all the way to protect our children,” Yates said, “(so) we do not create a monopoly for a billion dollar corporation.” 

Achieving FDA approval is a long, expensive process. The agency has a backlog of applications from vaping manufacturers who are suing the FDA over what they claim are its arbitrary decisions.

Sponsor Rebecca Raymer, R-Morgantown, said the legislation will help address the “rampant … vaping problem” in Kentucky’s schools. 

“If you look at what’s being confiscated, the majority of it are these flavored, disposable vapes that are being manufactured in China,” Raymer said in Thursday’s Senate Judiciary Committee meeting.

The Senate passed HB 11 by a vote of 29-7 with one pass just before 10 p.m. Thursday with bipartisan support and opposition. Hours earlier, the bill unanimously passed the Senate Judiciary Committee after it absorbed Senate Bill 344. 

The House concurred with the changes around 11 p.m. by a vote of 64-27. The bill can now go to Gov. Andy Beshear for a veto or signature. Should he veto it, the legislature can override him. 

Sen. Brandon Storm, R-London, who sponsored the bill that Raymer’s bill absorbed, said in committee it’s “an issue about China or children. Make your decision.”  

Later on the Senate floor, Storm said “this bill is basically an effort to curb that exposure” youth have to nicotine products.

What is in House Bill 11? 

In addition to limiting vape sales to “authorized products” — those that have a “safe harbor certification” based on their FDA status — the bill also directs the secretary of state to maintain a list of retailers that sell authorized products, which the sponsor hopes will fill a data gap. 

Kentucky Youth Advocates previously voiced its support for HB11, calling it a “critical first step to ensure that bad actors selling to underage kids are penalized.” 

Terry Brooks, executive director of Kentucky Youth Advocates, said Thursday that “we had hoped to celebrate HB 11 as a win for kids this legislative session, but at this point, it looks as if adult special interests are winning the day.” 

“What’s clear is that Kentucky’s kids are facing a vaping epidemic, orchestrated by ‘big vape’ companies through marketing and sweet flavors,” Brooks said. “What’s also clear is that kids are getting their hands on vapes through local retailers despite state and federal tobacco-21 laws prohibiting selling to those underage. What is unclear is why the Kentucky General Assembly continues to move the focus away from enforcing underage sales law and taking meaningful steps to reduce youth initiation of these addictive nicotine products.” 

‘China or children.’ 

The Centers for Disease Control and Prevention reports that “most” vaping products have nicotine in them, an “addictive” chemical which is “toxic to developing fetuses.” 

Vaping products can also harm lungs and the brain development in youth, the CDC says. E-cigarettes are not safe, the CDC says, though they’re safer than smoking traditional cigarettes, which the CDC reports is a leading cause of preventable death in the country. 

Some limited research suggests vaping can help people quit traditional smoking. 

Troy LeBlanc, a Louisville businessman, testified against the bill in committee, saying he would be forced to close vape stores and put 50 people out of their jobs under the proposed law, which would go into effect the first day of 2025. 

“We simply can’t compete having vape stores have the exact same 15, 20 products as every gas station,” he said. 

LeBlanc further said the bill “is essentially creating a monopoly for JUUL,” which is an e-cigarette company. 

Greg Troutman, a lawyer for  Kentucky Smoke Free Association, said kids will still be able to access the products in question online and that the bill “​​is going to make it worse.” 

“We all agree … we do not want kids to have these products in any way shape or form,” Troutman told committee members. “This bill is not going to keep them out of the hands of kids.” 

Instead, he said: “You’re worried about vapes being in schools? These kids are going to order them in bulk and take them to school and use them and sell them.”  

On the floor, Sen. Karen Berg, D-Louisville, passed on the bill — the only lawmaker to do so. 

“Obviously, unequivocally we do not want these type of vape products being sold to young people in the state, they are not good,” said Berg, a physician. “We are sure they are addicting.” 

For adults, she said, “if that’s what you want to do with your body, that is your right to do it.” 

“With this particular situation,” she said, “(it) seems like we’re really in between a rock and a hard place because the number of products that have been approved by the FDA are extremely limited.” 

Sen. Shelley Funke Frommeyer, R-Alexandria, voted against the bill for the sake of small businesses. And though she cares for children’s safety, she said, the bill “is very destructive to many small businesses.” 

Altria CEO Billy Gifford during a Feb. 1 earnings call talked about the company’s efforts to combat illegal flavored disposable e-vapor products by, among other things, “engaging” with state and federal lawmakers.

Gifford told investors the company has “worked with legislatures in a number of states that have passed or are considering legislation requiring manufacturers to certify that they have either submitted a PMTA, which is pending or received a marketing order in compliance with FDA regulations.” A PMTA is a pre-market tobacco product application to the FDA.

In Kentucky, Altria is represented by lobbyist John McCarthy, a former chairman of the Republican Party of Kentucky.