Franklin Circuit Judge Wingate dismisses constitutional challenge to anti-vaping law

By Sarah Ladd
Kentucky Lantern

Franklin Circuit Court Judge Thomas Wingate has dismissed a lawsuit challenging the constitutionality of a 2024 law banning the sale of some vaping products.

In doing so, Wingate sided with the lawsuit’s defendants — Allyson Taylor, commissioner of the Kentucky Department of Alcoholic Beverage Control, and Secretary of State Michael Adams — who filed a motion to dismiss.

Greg Troutman, a lawyer for the Kentucky Smoke Free Association, which represents vape retailers, had argued that the law was too broad and arbitrary to pass constitutional muster because it is titled “AN ACT relating to nicotine products” but also discusses “ other substances .” The state constitution says a law cannot relate to more than one subject.

In his opinion, Wingate said the law doesn’t violate the state constitution.

The law’s title “more than furnishes a clue to its contents and provides a general idea of the bill’s contents,” he wrote.

The law’s “reference to ‘other substances’ is not used in a manner outside of the context of the bill, but rather to logically indicate what is unauthorized,” Wingate wrote.

The lawsuit centers around House Bill 11 , which passed during the 2024 legislative session and goes into effect Jan. 1. 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, lead to a monopoly for big retailers and could drive youth to traditional cigarettes.

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.

“The sale of nicotine and vapor products are highly regulated in every state, and the court will not question the specific reasons for the General Assembly’s decision to regulate and limit the sale of  nicotine and vapor products to only products approved by the FDA or granted a safe-harbor certification by the FDA,” Wingate wrote in a Monday opinion. “The regulation of these products directly relates to the health and safety of the Commonwealth’s citizens, the power of which is vested by the Kentucky  Constitution in the General Assembly.”

Kentucky Attorney General Russell Coleman, as well as Taylor and Adams, praised the ruling in their favor.

Coleman said the ruling “underscores” that the “General Assembly is empowered to make laws protecting Kentuckians’ health and charting our course for a bright future.”

“The Department of Alcoholic Beverage Control appreciated the clarity gained from the Courts that this law is constitutional,” Taylor, the commissioner, said in a statement. “ABC will continue with its implementation efforts and will be prepared to enforce the law when it takes effect in January.”

Rep. Rebecca Raymer, R-Morgantown, who sponsored the bill, said she’s “pleased to see the Court rule in favor of our efforts to ensure the health and safety of Kentuckians. As a lawmaker, mother and health care provider, I believe we owe it to the people of this state, particularly our children, to ensure that the products they are using are safe.”

“If a product can’t get authorized or doesn’t fall under the FDA’s safe harbor rules, we don’t know if the ingredients are safe, where they’re from, or what impact they will have on a user’s health,” Raymer said in a statement.

Sen. Brandon Storm, R-London, who carried the bill in the Senate, echoed Raymer.

“Judge Wingate made the correct ruling and did well in articulating that HB 11 and other bills focused on oversight of products to safeguard the health and safety of Kentucky residents is a constitutional responsibility entrusted to the Kentucky General Assembly,” he said. “As lawmakers, we have a great responsibility to steer public policy in a direction that better protects the public, especially when it involves negative health consequences for Kentucky children. I’m pleased HB 11 will stand and look forward to working with my colleagues further to protect the health and well-being of our constituents.”

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