Utah is in a legal battle over a law that banned the sale of flavored vapes but lawmakers see a way out. That lawsuit could go away if a proposed bill makes it through the Legislature.
In 2024, Gov. Spencer Cox signed a prohibition on flavored vapes and e-cigarette juice being sold in Utah. It was scheduled to take effect Jan. 1, 2025. However, products are still being sold because a district court judge blocked the law from going into effect.
HB432, sponsored by Republican Rep. Matt MacPherson, would repeal the ban while implementing stricter enforcement in an attempt to crack down on youth vaping. The nicotine limit on tobacco products would also be repealed. McPherson told KUER on Feb. 19 that an amendment will be introduced on the House floor to cap the amount of nicotine allowed at 5%.
If approved, the lawsuit brought against the state by the Utah Vapor Business Association would be dropped. MacPherson said the state would likely pay out $500 million if the lawsuit were to continue.
“[It] wouldn't require us shutting down almost 200 small businesses and putting them out of business. It wouldn't require us to tell adults what flavors of legal products they're allowed to use, and wouldn't require us as a state to give up our core principles of small government,” he said during a Feb. 18 committee hearing.
For MacPherson, banning flavored vapes doesn’t get to the heart of the issue, either. Youth vaping rates are down. Instead, he believes the state needs to do a better job of regulating retail tobacco specialty businesses, which are stores that are permitted to sell flavored vapes and other nicotine products. There are around 180 stores statewide according to MacPherson and the Utah Vapor Business Association. General retail stores, like Maverick and 7/11, aren’t allowed to sell flavored vapes.
While fruity and sweet vapes could still be sold in Utah, the bill would make sweeping changes to the industry. The Utah Vapor Business Association told the House Business, Labor, and Commerce Committee it is on board with the legislation as it stands now.
These are the biggest alterations HB432 would make:
- Creates a new handling permit for a retail tobacco specialty business to operate. MacPherson said The Department of Health and Human Services would put together a training program on how to handle tobacco products. All employees working with the products would need to have a valid permit.
- All retail tobacco specialty businesses would need to scan IDs.
- No one under 21 would be legally allowed to enter a tobacco specialty business. Consumers already have to be 21 to buy nicotine products.
- Surveillance will be installed in all tobacco specialty businesses to capture point of sales. That way, MacPherson said, if law enforcement caught someone illegally distributing vape products to minors, they would be able to look at the footage and identify who did it.
- Local health departments and the State Bureau of Investigations will conduct more operations and inspections to make sure only people 21 years old and up are buying products.
- Increase the criminal penalty for distributing nicotine products to someone under 21 to a Class A Misdemeanor.
- Increase the punishment if a store is caught selling products to someone underage. The first offense is a $10,000 fine and the store would need to shutter for 30 days. The second offense is $20,000 and the store shutters for good and the owner is unable to obtain another license to sell tobacco products.
- Increase the annual licensing fee for tobacco specialty businesses from $30 to $3,000. MacPherson said the extra money will go to the State Bureau of Investigations to make sure stores comply with the law.
- There would be a new 2.5% tax on all flavored vape products. The money will go toward school lunches, anti-vaping education for youth and enforcement.
- Mandates all retail tobacco specialty businesses to install radio-frequency identification on the vape products. MacPherson said RFID would help law enforcement track who and where a person bought a vape. MacPherson told KUER that the state would require manufacturers to place the RFID tag.
MacPherson acknowledged this is a trade-off. While his bill would repeal a law already on the books, he said it would end a legal battle, increase funding for enforcement and provide millions of dollars for anti-vaping research and campaigns.
“We would create a regulatory environment for vaping in this state that would be the gold standard,” he said.
Despite MacPherson’s presentation, lawmakers still seemed leery of the bill. Republican Rep. Jim Dunnigan expressed concern about repealing the nicotine limit. MacPherson believes that the problem has been addressed with the proposed amendment to cap it at 5%.
Republican Rep. Jefferson Burton didn’t like the provision that allows for all nicotine flavors. Under the bill that banned most flavored vapes, the flavors were limited to tobacco, menthol and mint flavors.
“By bringing that back, it's going to make it more enticing to people who haven't tried it [vaping] before,” he said. “We just don’t want to encourage our kids to use these products.”
The bill advanced out of committee in an 8-6 vote. It now heads to the House for a full debate.
