Judge Rules Vape Shops Can Keep Selling Flavored E-Cigarettes — For Now

SALT LAKE CITY, Utah – A judge on Monday ruled in favor of local vape shop owners who filed a lawsuit against the Utah Department of Health.

Judge Keith Kelly granted the plaintiffs an emergency restraining order.

The lawsuit was filed in response to an emergency rule issued by the UDOH that restricted the sale of flavored e-cigarettes amid a national outbreak of lung damage linked to vaping. It bans general tobacco retailers from selling flavored vaping products and requires shops to display a sign warning customers of the dangers of vaping unregulated THC products.

“I conclude the health department did not comply with Utah code,” Kelly said.

The emergency restraining order puts a hold on the rule, which went into effect Oct. 21. Vape shops without specialty licenses will now be able to continue selling flavored products until the parties meet again for a preliminary injunction.

“The public health crisis is not related to the products my clients are selling,” said the plaintiff’s attorney Phil Dyer. “If it were, we wouldn’t be here in the first place.”

UDOH released a statement shortly after the judge’s ruling:

We are disappointed in the outcome of today’s hearing. 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 businesses. 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.

The emergency ban would have been in place for 120 days before the state implemented a permanent rule. Vaping retailers said they feared it would mean going out of business.

“We think that this was something that was a bit of a knee-jerk reaction on the state’s end,” said Kevin Henrie, who owns a vape shop but doesn’t have a specialty license. “… A flavor ban means that very few of our customers vape the tobacco flavors. It would essentially turn our customers elsewhere.”

The rule also included mandatory signage be posted at places that sell e-cigarettes giving notice about the dangers of vaping unregulated THC products.

The shop owners who filed the lawsuit contend there is no evidence to suggest flavored e-cigarettes are causing lung damage, pointing instead to the same blackmarket THC products the state’s signs warn consumers about.

“The emergency is over blackmarket THC products, which we agree is a problem, we agree is a health emergency, and we’ve been trying to work with state officials,” said Juan Bravo of VIP Vapors of Orem.

The parties could settle before the preliminary injunction on Nov. 22, which is scheduled for 5 p.m. at the Third District Courthouse in Salt Lake City.

The Associated Press contributed to this report.