Judge Stops Utah’s Flavored Vaping Restrictions

General retailers can still stock flavored e-cigarette products.

October 30, 2019

SALT LAKE CITY—Utah retailers can once again sell flavored vaping products after a judge removed the state’s emergency restrictions on the products, the Salt Lake Tribune reports. The state had enacted the emergency restrictions on flavored e-cigarette products that yanked them from the shelves of grocery and convenience stores but allowed for their sale to continue at specialty tobacco shops.

The state had argued that young people flavored nicotine products and the products would be a gateway to illegal THC products, such as those associated with the outbreak of serious lung illnesses across the country. However, Judge Keith Kelly with the Third District said the Utah Department of Health (UDOH) neglected to prove new flavored-nicotine vape users moved on quickly to THC products.

“Notably ... the word ‘flavor’ does not appear anywhere in the UDOH’s official analysis,” Kelly wrote. That some nicotine users “eventually move on to vaping THC” did not embody the definition of “imminent peril.” Therefore, the state’s emergency restriction on flavored vape products wasn’t justified, the judge concluded.

Kelly noted that the state had time to follow the regular 120-day procedure for enacting new rules. “Again, UDOH offers no explanation of why such visibility issues create an imminent peril that could not be addressed in the normal 120-day rulemaking process,” he wrote. The judge also sided with retailers’ assertions that the emergency restriction would cause their businesses harm.