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Judge termporarily overturns Utah’s ban on flavored vapes

Photo: Nam Y. Huh, Associated Press

SALT LAKE CITY — A Utah judge granted a temporary restraining order Monday, overturning, at least for now, a ban on the sale of flavored vapes in the state.

The ruling from Third District Court Judge Keith A. Kelly affects just part of the emergency rule from the Utah Department of Health but leaves other parts in place.

The restrictions took effect on October 21. The emergency rule from the health department restricted the sale of all flavored e-cigarettes in Utah, and required retailers to display warning signage detailing the dangers of vaping unregulated THC products. Only the part of the rule restricting the sale of flavored vapes is affected by the restraining order.

The Department of Health issued a statement saying they were disappointed in the outcome of Monday’s ruling.

Our top priority is stopping the outbreak of vaping-associated lung injuries, and we believe the emergency rule is one of the tools that can help us achieve that goal.

The plaintiffs who brought this suit represent a small minority of tobacco business. Most general tobacco retailers and specialty tobacco shops are already in compliance with the emergency rule and we encourage them to remain so.

We will continue with other efforts to stop this outbreak and to protect the public’s health. However, in accordance with today’s ruling, we will notify local health departments to cease enforcement of the emergency rule for the time being. We look forward to presenting our arguments in future hearings.

 

In the ruling issued Monday, Kelly found the Utah Department of Health needed either to give businesses 120 days before the emergency rule took effect, or needed to make the emergency rule temporary.

“UDOH’s justification for issuing the emergency Vaping Rule focuses on unregulated tetrahydrocannabinol (“THC”) obtained from the black market, which is illegal in Utah,” the ruling stated.

It continued:

Notable in UDOH’s ‘Rule Analysis’ and ‘Emergency Rule Reason and Justification’ for the Vaping Rule is the lack of any justification for limiting the sale of legal Flavored Vape Products. … The word ‘flavor’ does not appear anywhere in the UDOH’s official analysis. The UDOH investigation does not link the recent wave of lung illnesses to Flavored Vape Products but, instead, links the lung illnesses to these persons’ use of black market THC cartridges.

In other words, since the specialty vape shops don’t sell illegal, black market THC cartridges, the ban should not apply to legal flavored vapes.

Those in the vaping community are calling this decision a win.

Juan Bravo with the Utah Vapor Business Association says the emergency ruling was ill conceived from the beginning.

“It was not properly thought out, it actually did nothing to assist with the health crisis that’s going on right now with the black market THC cartridges,” explains Bravo. “Which are not even sold in vape shops.

He says there are some things he can get on board with, like keeping vape products out of the hands of minors. But according to him, health officials are wrongly pointing the finger at flavored e-cigarettes for the cause behind widespread health concerns.

“I think we’re learning more and more that flavored nicotine products are not the problem,” he says.

The temporary restraining order will stay in place until Friday, November 1, 2019, at 5:00 p.m., but Kelly scheduled a hearing on the matter for Thursday morning.

You can read the full ruling here.

And you can hear a discussion on this topic by Dave Noriega and Debbie Dujanovic, otherwise known as Dave and Dujanovic, below:

This story will be updated.