Utah health department considers allowing more nicotine in vape pens

SALT LAKE CITY — State health officials are looking at allowing electronic cigarette manufacturers to increase the levels of nicotine in their products sold in Utah after a recent lawsuit settlement.

The proposed rule allows Utah retailers to sell vape pens with a higher nicotine concentration than is currently legal, if the products are authorized through a Food and Drug Administration premarket tobacco product application.

Braden Ainsworth, program manager for the Utah Department of Health and Human Services Tobacco Prevention and Control Program, said a 2020 law gave the department the authority to amend the tobacco law and set a nicotine limit for manufacturer-sealed tobacco products.

“While the Utah Department of Health and Human Services is making this change to better align with FDA’s (Premarket Tobacco Product Applications) process and orders, we still don’t recommend e-cigarette and vape products for use and consumption since they expose people to risk of tobacco-related disease. E-cigarettes and vape products are harmful and the long-term health effects are unknown,” he said.

Ainsworth said the department’s priority is creating policies that give Utahns “fair and equitable opportunities to live safe and healthy lives.”

In September 2021, a limit was set at “3% by weight per container,” and no more than 36 mg/mL concentration of nicotine.

Ainsworth said the assessment and decision arose during litigation around the rule, and it is part of a settlement, “but the department would have pursued changes to the vape policy by amending the rule in some way whether or not a settlement was reached.”

Under the revised rule, products that are sealed by manufacturers could contain any amount approved by the FDA, which limits the amount to 5% by weight but no more than a 59mg/mL concentration of nicotine. The rule notes that in 2022, products were approved with concentrations ranging from 1.5% to 6%.

Ainsworth said Utah has seen a decline in youth vaping. In 2019, 12.4% of teenagers vaped, and in 2021 the percentage decreased to 7.8%, according to state data. Multiple policy changes in 2020 were designed to address youth e-cigarette use, including restricting flavors, he noted.

The public comment period for the rule ended on Wednesday, and the change could be enacted as early as June 21. But a version of the rule correcting a one-word error will be open for public comment until July 17. People can send comments through email to tobaccorulescomments@utah.gov.

The Utah Department of Health and Human Services will review all of the comments on both proposed rules and will summarize public comments and respond to them before each rule is either enacted, amended or withdrawn, Ainsworth said.