Judge hears arguments on Kentucky law banning some vaping products

Lawyers for the state on Monday defended the legislature's decision to outlaw some vaping products. The Kentucky Vaping Retailers Association and the Kentucky Hemp Association are challenging the law. The hearing was held in the Franklin County Court House. (Kentucky Lantern photo by Sarah Ladd)

FRANKFORT — Franklin Circuit Judge Thomas Wingate heard arguments Monday in a case challenging the constitutionality of a 2024 law banning the sale of some vaping products.

This comes as the defendants — Allyson Taylor, commissioner of the Kentucky Department of Alcoholic Beverage Control, and Secretary of State Michael Adams — filed a motion to dismiss the case.

Should Wingate grant that motion, the plaintiffs — the Kentucky Vaping Retailers Association, the Kentucky Hemp Association and four vape shops — will appeal the decision, their lawyer told the Lantern. The plaintiffs have also filed a motion for judgment.

Either way, the case is far from settled. It’s unclear when a decision could come, as Wingate said it will “take a while” for him to review.

Kentucky’s new anti-vaping law ignites constitutional challenge

The arguments

The lawsuit centers around House Bill 11 , which passed during the 2024 legislative session. Backers of the legislation said it’s 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 U.S. Food and Drug Administration (FDA).

Opponents have said it will hurt small businesses and lead to a monopoly for big retailers.

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.

Greg Troutman, a lawyer for the Kentucky Smoke Free Association, which represents vape retailers, told the judge Monday that, among his issues with the new law, is the way it defines “ vapor products” and “other substances,” looping e-cigarettes and vapable hemp and marijuana products together. He argues that combination makes the law too broad and arbitrary to pass constitutional muster.

Troutman argued that because of this, the title of the bill, “AN ACT relating to nicotine products,” didn’t fairly represent the content of the legislation .

Lindsey Keiser, an assistant attorney general, countered that the title doesn’t need to fully cover the content of the bill.

“It’s long settled that the title does not need to have a detailed index of everything that’s contained within the bill,” she told the judge.

Keiser also argued that “the fact that the FDA has approved so few indicates that there is a lot of concern about these products.”

“So,” she said, “it’s reasonable then for Kentucky to … say that ‘if the FDA is only approving this limited number, we too will only approve this limited number.’”

Later this year, the U.S.  Supreme Court will decide whether or not the FDA was unfair in its denial of at least a million vaping product applications, the Associated Press reported in early July.

Troutman, arguing for the vape retailers, said the state law is flawed because it’s based on a flawed federal process. “We’ve got a state process that is predicated before a federal process that itself has been deemed arbitrary by at least two federal courts,” he said.

Meanwhile, HB 11 is set to be enforceable starting Jan. 1, 2025, the same day patients with a history of post traumatic stress disorder ( PTSD ), cancer or other approved medical conditions — will be able to apply for cannabis cards for medical marijuana.

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