Officials celebrate flavored vape ban ruling, but it's complicated

SALT LAKE CITY — A federal judge upheld a ban on the sale of flavored e-cigarette products across the state on Monday.

Some officials cheered the news, the ruling coming over a year after SB61, Electronic Cigarette Amendments, was passed in an attempt to combat minors' use of vape products by banning their sale from retail tobacco specialty businesses.

SB61 changed Utah code to prohibit any e-cigarette products not authorized by the Food and Drug Administration, set a nicotine limit of 4% by weight, ban all flavored products except menthol and tobacco, and create an approved product registry.

The date of that enforcement change was set to Jan. 1, 2025, but the Utah Vapor Business Association and a Millcreek business The Smoke House, filed a lawsuit in December 2024, petitioning for a temporary stay on enforcement and asking for the court to strike down the bill as unconstitutional.

On Monday, U.S. District Court Judge David Barlow allowed enforcement of the ban to begin, as legal discussions continue about the constitutionality of only a small part of the bill regarding warrantless inspections.

"That was a piece of advocacy legislation that came directly from youth," Aubri Devashrayee, a media coordinator for the Department of Health and Human Services, told KSL.com. "It was youth themselves saying, 'No, this is what we're seeing. This is harmful to us, and we would like to see something change.'"

Critics of the ban, however, say minors are not getting flavored vapes from these businesses in the first place — they're getting them from social media and online sellers.

"When that bill came through, I voted against it in committee. I was the only one at the time," said Rep. Matt MacPherson, R-West Valley. "What they were describing was that this was an issue of access for teens or for kids, but the bill itself seemed to do nothing to actually stop that problem. In fact, all it seemed to really do is target these specialized tobacco companies and shut them down."

In 2023, a survey found around 7% of eighth to 12th graders reported vaping in the last 30 days, down from 12.4% in 2019, according to DHHS.

"They are seeing firsthand how this is impacting them, in their bathrooms, in their schools; it's omnipresent for them," Devashrayee said.

The bill sponsor, Sen. Jen Plumb, D-Salt Lake City, issued a statement to KSL.com saying, "The goal will always be protecting kids and youth. In this case, the legislative process brought us partway there, and then judicial review made it better."

Attorney General Derek Brown also released a statement saying, "Our attorneys have worked tirelessly on this case to defend Utah's law ... their work is crucial in preventing kids from getting hooked on nicotine."

"We found that a lot of vapes are being sold to youth over Snapchat," according to Devashrayee, but the bill might address those youth who are able to access the product through adults in their lives.

Businesses react

KSL.com spoke to a number of business owners who say the ban is going to force them to shut down their companies while propping up a dangerous market of unregulated products sold illegally.

"Kids are getting these products through online sources, including social media and also general retailers that have not been lawfully allowed to sell these products in over five years," Beau Maxon said. He is the owner of a number of vape shops and vice president of the Utah Vapor Business Association.

Under the ban, tobacco and menthol-flavored vape products are still allowed to be sold at gas stations, grocery stores and elsewhere.

The specialized establishments created by the Legislature in 2020 are the only places in the state where flavored vapes were legally sold under strict regulation and the only directly affected by the 2024 bill.

There were 1,726 total tobacco retailers as of May 2024, and only 180 Utah businesses licensed as retail tobacco specialty businesses.

MacPherson said these businesses were "regulated in such a way that they can't compete with anyone else," with most being "tucked away in these back industrial complexes or these little strip malls in the middle of nowhere, and their clients have to physically seek them out.

Local health departments' underage tobacco stings showed that sales to minors are relatively rare by these specialized businesses, according to documents from the lawsuit. Salt Lake County reports that in 2023, general retailers failed checks on minors 9.2% of the time, while specialty shops failed only 1.4% of the time.

A survey of vape shops shows "anywhere from 60% to 85% or more of net sales come from flavored electronic cigarette products," according to Maxon. "It's a pretty fair assumption that these businesses will go out of business."

MacPherson told the story of one entrepreneur who mortgaged his house, taking out loans to start a shop after 2020, following the law. "He's going to lose his home. He's going to lose his livelihood, you know — him, his wife, his kids, they're all going to be destitute. They got nothing, absolutely nothing," MacPherson said, "and that is replicating, you know, 100, 200 times."

A regulatory solution

In the 2025 legislative session, MacPherson proposed a bill that originally pushed the ban out to 2026 to allow businesses time to wind down operations.

Spending time in one shop, downtown Salt Lake City's Vape on Main, customers were regularly turned away after asking for flavored products. Only one of their distributors is allowing returns on existing inventory, so the business managers are working to figure out next steps for their 20-year-old shop.

"I don't drink, I don't smoke, I don't vape. I have no interest in promoting these products," MacPherson told KSL.com, but he said he wants to help these business owners to avoid financial ruin.

After being approached by a number of representatives, including those from vape businesses, MacPherson began working to put together a solution that he believed would actually prevent teen vaping, while heavily regulating the existing market.

His bill would have done the following:

• Prevented the sale of product to people previously caught selling to minors.
• Created a state registry to easily identify product legally imported into the state.
• Attempted to regulate online sellers
• Increased identification scanning requirements and surveillance footage requirements, permitting requirements and licensing fees

"I don't know whether or not banning this product across the state is more effective, or is the right thing to do versus trying to deeply regulate it," MacPherson said, adding that he believes his bill was his best possible regulatory solution.

The Utah Eagle Forum, Drug Safe Utah and The Church of Jesus Christ of Latter-day Saints came out strongly against the bill, which MacPherson and Maxon say undercut the bill's support.

Some vape store owners told KSL.com they will pivot to vape devices for medical THC products, while others say they will simply go out of business.

"I just think it's a tragedy that we think that we are a free market, Republican, small-business friendly state, and take that kind of action," MacPherson said. "Me personally, if I were to open a business in Utah, regardless of the business, I would see that as a huge red flag."

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