Federal Judge Delays Utah’s Flavored Vape Restrictions
Temporary Restraining Order Granted Following Complaint from Utah Vapor Business Association
A federal judge has granted a temporary restraining order against the State of Utah, delaying the implementation of restrictions on flavored e-cigarettes that were set to take effect on January 1, 2025. The order, issued by Judge David Barlow on Monday, December 30, 2024, comes in response to a complaint filed by the Utah Vapor Business Association (UVBA) and The Smoke House against the state and other entities.
The restrictions, outlined in Senate Bill 61 “Electronic Cigarette Amendments,” were introduced in the 2024 legislative session and signed by Governor Spencer Cox in March. The bill aimed to outlaw the sale of flavored vape products, including those that taste or smell like fruit, candy, desserts, alcohol, herbs, or mint, as well as any vape product not authorized by federal officials.
Complaint Argues Unconstitutionality and Negative Impact on Businesses
The 68-page complaint filed by the UVBA and The Smoke House on December 12, 2024, seeks to declare the enforcement provisions of S.B. 61 unconstitutional and enjoin their enforcement. The plaintiffs argue that the availability of flavored e-cigarettes is already limited and closely monitored, as they are only legally available at retail tobacco specialty businesses.
The complaint further contends that banning flavored e-cigarettes will lead to Utahns smoking more harmful combustible cigarettes, obtaining flavored e-cigarettes out of state, or turning to the black market. It also claims that members of the UVBA, including tobacco retailers, would lose “the overwhelming majority” of their business if prohibited from selling flavored vape products.
Plaintiffs Raise Constitutional and Administrative Concerns
The plaintiffs argue that the flavor ban is preempted by the FDA’s Tobacco Control Act and would subject retailers to searches and seizures that violate the Fourth Amendment. They also claim that the ban violates Utah’s Administrative Rulemaking Act, in regards to enacting rules by the Department of Health and Human Services (DHHS), and would violate the Takings Clause of the Fifth Amendment.
Briefing and Hearing Schedule to Be Set
As part of the temporary restraining order, the State of Utah will not be able to enforce the provisions of S.B. 61 until a decision is made on the December 12 filing. Additionally, manufacturing, distributing, or selling e-cigarette products that are not on the registry of the Utah State Tax Commission will not be considered a violation of the law until a decision is reached.
The court has stated that a briefing and hearing schedule will be set for the plaintiffs’ initial complaint, and the order is intended to preserve the status quo of Utah law as of December 31, 2024, regarding flavored electronic cigarette products and the nicotine content of electronic cigarette products.
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