Vape shops take Utah health department to court over ban on flavored e-cigarettes

A group of Utah vape shops are going to court, trying to stop the state health department from enacting an emergency ban on flavored e-cigarette products.

Eight businesses that own retail locations along the Wasatch Front filed a complaint Monday in 3rd District Court in Salt Lake City, seeking a temporary restraining order and an injunction against the Utah Department of Health. The complaint is against UDOH and its director, Dr. Joseph K. Miner.

The rule, issued Oct. 1, says that only tobacco specialty shops can sell flavored e-cigarettes — and that all stores that sell vaping products must post warnings about the dangers of unregulated THC products. County health departments were ordered to start enforcing the rule Monday.

Officials issued the emergency rule after a spate of cases of lung damage linked to vaping. As of Monday, the state health department said there were 98 such cases in Utah, with one death linked to vaping. Nationwide, at least 33 deaths, and nearly 1,500 cases overall, have been connected to e-cigarettes.

The vape shops, in their court filing, argue that “UDOH has no scientific evidence that vaping flavored electronic cigarettes is the cause of the recent illnesses” that prompted the rule. The illnesses are linked instead to “these persons’ use of black market THC cartridges,” according to the court filing.

Products with THC, the psychoactive ingredient in marijuana, are illegal in Utah.

When the rule was announced in early October, Miner noted the mounting evidence that unregulated THC products were responsible for the surge in illnesses. He also said, in a statement, “we know many young people who vape THC initially vape nicotine, especially flavored nicotine. Moving these products to age-restricted specialty shops will restrict young people’s access to them and can reduce the number of users who eventually move on to vaping THC.”

The eight shops have general tobacco retailer licenses, which means they can’t sell flavored vape products under UDOH’s ban. The shops argue the health department didn’t give any time for public comment for the rule change, and that their businesses could be harmed by the ban.

A health department spokesman declined to comment on the filing Monday night, until officials can read it fully.

The shops filing for the injunction and restraining order are: VIP Vapors of Orem; Alternatives in West Jordan; Empire Merchandise Co., which has locations in Salt Lake City and Pleasant Grove; Current Vapor in Midvale; Draper Vapor in Draper; Greater Salt Lake Top Stop LLC, which operates stores in Davis County; HOV2 in Salt Lake City; and VOS Retail LLC in Taylorsville.