Utah’s ban on flavored vapes and e-cigarette juice that’s tied up in court will remain on the books after lawmakers failed to pass a repeal.
In 2023, lawmakers banned flavored vapes but that ban was blocked after the Utah Vapor Business Association won a restraining order.
With HB432, Republican Rep. Matt MacPherson saw a way out from the lawsuit. His idea was to repeal a ban on the sale of flavored vapes and increase regulations, fees and fines for retail tobacco specialty businesses if they’re caught breaking the law.
MacPherson argued his bill would do more to address youth vaping than a blanket ban because it would implement stricter industry regulations and crack down on the unauthorized sale of vapes. He criticized the 2023 policy for not “providing any enforcement mechanisms” to cut down on youth use, which is at its lowest rate in 10 years.
However, the bill met an unexpected challenge during a floor debate in the House on March 4.
Republican Rep. Kristen Chevrier said the prohibition on flavored vapes hasn’t proven effective because of the court challenge. So she made a substitute motion.
“My substitute removes the language that the lawsuit is focused on,” she said. “It puts the nicotine percentage back to 4%, it removes flavors and there's a five-year sunset review so that we can go back and see whether the policy is working.”
In their suit, the Utah Vapors Business Association argues the ban violates the Fourth Amendment of the U.S. Constitution by allowing local health departments to search “all desks, safes, vaults, and other fixtures and furniture contained in or upon the premises for the purpose of ascertaining whether an electronic cigarette product is held or possessed” without a warrant.
Chervrier’s substitute would have removed that language.
MacPherson considers her motion not only an “unfriendly substitute” but “a hostile substitute.”
“What this substitute bill does is simply says we would rather have a political statement than any real tools, any resources or any enforcement that will get to the actual meat of this argument,” MacPherson told his peers.
Democratic Rep. Jen-Daily Provost favored the substitution. She said it would keep in place all the regulations and penalties outlined by MacPherson while still banning flavored vapes.
“This is a predatory industry that knows that it needs to addict children to nicotine in order to maintain its long-term viability, and it knows that having flavors is a way to do this,” she said. “The most effective way to prevent kids from vaping is to get rid of flavor. Full stop.”
The House initially approved the substitute in a 40-34 vote. When asked if he would like to speak to the new version of the bill, MacPherson said he didn’t like it at all.
For MacPherson, the point of the bill was to resolve the lawsuit and give adults the agency to purchase flavored vapes. At the same time, it would tighten up statutes around retail tobacco specialty businesses and general retailers that illegally sell vapes. He also mentioned during a committee hearing that allowing the sale of flavored vapes would keep the doors of 180 retail tobacco specialty businesses open.
Later in the evening’s floor debate, MacPherson offered another substitute to the bill.
His main revision would have been to only allow flavors that are under a Premarket Tobacco Application review and approval by the U.S. Food and Drug Administration. It also bumped the nicotine level back up to 5% and created a registry of vapes allowed to be sold in the state.
“I understand this is a hard choice and I'm not asking for anyone specifically to take a particular position,” MacPherson said. “I'm just saying please consider all the regulatory environments we've set up on this bill.”
Daily-Provost argued the premarket tobacco application isn’t enough to make flavored vapes legal in the state. Rather, the application approval means the administration has “enough information to then begin researching and begin a process to determine if a product should be allowed to be marketed.” These products under review don’t officially have FDA approval.
Republican Rep. Ray Ward, who is also a doctor, added that FDA involvement doesn’t address his concerns about vaping. He is worried about the addictive nature of the substance, particularly as it pertains to adolescents.
“These products are clearly one of the most effective ways of getting new people on nicotine.”
The bill failed on the final vote on the House floor 22-47.
