State judge dismisses constitutional challenge to anti-vaping law

By Heather Close Published August 1, 2024 DRUGS, FEATURED, HEALTH BUSINESS, HEALTH POLICY, YOUR HEALTH

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

Wingate sided with the lawsuit’s defendants — Allyson Taylor, commissioner of the state Department of Alcoholic Beverage Control, and Secretary of State Michael Adams — who filed a motion to dismiss. The law designates the ABC as its enforcement agency.

The Kentucky Smoke Free Association, which represents vape retailers, had argued that the law was too broad and arbitrary to be constitutional because it is titled “An act relating to nicotine products” but also mentions “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 on House Bill 11, which passed during the 2024 legislative session and is scheduled to take effect Jan. 1. Its backers said it will 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.

Opponents have said it will hurt small businesses and favor big companies, and could drive youth to traditional cigarettes.

Altria, the parent company of tobacco giant Philip Morris, lobbied for the bill and 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.”