Kentucky Vape Shops Sue Over New Anti-Vaping Law

Kentucky vape shops sue anti-vaping law

In a recent development, several Kentucky businesses that sell vapes, along with the Kentucky Hemp Association and Kentucky Vaping Retailers Association, have filed a lawsuit against the state government over the newly passed House Bill 11 (HB 11). The law, which is set to take effect in 2025, aims to restrict the sale of vape products to only those authorized by the U.S. Food and Drug Administration (FDA) or those currently in the approval process.

The lawsuit, filed last week in Franklin Circuit Court, challenges the constitutionality of HB 11, particularly focusing on the law’s broad definition of a “vapor product.” The plaintiffs argue that the definition, which includes devices featuring “vaporized nicotine or other substances,” encompasses not only nicotine vapes but also hemp-derived and potentially future medical cannabis vaping products.

Attorney Greg Troutman, representing the plaintiffs, stated, “I think the Legislature, in their rush to get this passed … they made some mistakes. And if they would simply have changed the ‘vapor product’ definition to take out the words ‘or other substances,’ we wouldn’t be talking right now because there wouldn’t be a case.”

The lawsuit claims that HB 11 violates two constitutional provisions. First, it argues that the Kentucky Constitution prohibits the Legislature from passing a law that relates to more than one subject, which must be specified in its title. The plaintiffs contend that HB 11, titled an “act relating to nicotine products,” actually affects non-nicotine products as well, effectively violating this constitutional rule.

Second, the lawsuit asserts that hemp-derived vapes are generally not regulated by the FDA, making it impossible for businesses to comply with HB 11’s requirement to only sell FDA-approved or pending-approval vapes. This, the plaintiffs argue, violates the due process clause of the U.S. Constitution and makes HB 11 an “arbitrary” law, which is prohibited by the Kentucky Constitution.

HB 11’s lead sponsor, GOP Rep. Rebecca Raymer of Morgantown, stated in a March meeting that the goal of the law is to get vape products “off the market that were being geared toward our children.” She emphasized that the law is not making anything illegal but simply following the guidelines set by the FDA since it became the regulatory authority over vaping products in 2016.

However, the vape shops and associations involved in the lawsuit argue that the law’s broad definition of “vapor product” will have unintended consequences, affecting not only nicotine vapes but also hemp-derived and potentially future medical cannabis vaping products.

As the lawsuit progresses, the courts will have to interpret the constitutionality of HB 11 and its potential impact on the vaping industry in Kentucky. The outcome of this legal battle could have significant implications for the future of vaping regulations in the state and potentially set a precedent for similar cases in other jurisdictions.

A spokesperson for the Kentucky House of Representatives’ leadership told LPM News that they do not comment on pending litigation.

News source: Louisville Public Media (LPM)

Matthew Ma