Utah judge to decide if state can keep its emergency order banning flavored e-cigarettes

(Trent Nelson | The Salt Lake Tribune) Vape juice at The Lake Smoke & Vape shop in Pleasant Grove on Wednesday Sept. 11, 2019.

A judge is scheduled to rule Monday on whether the Utah Department of Health acted inappropriately by imposing an emergency ban on the sale of flavored nicotine vaping products at certain stores.

Phillip Dyer, an attorney representing a group of stores that sell vaping products, argued in 3rd District Court on Friday that state health officials should have gone through a regular procedure — which would include public comment — before imposing new rules that he said could put his clients out of business.

“It’s not flavored products or substances that are creating or causing these health issues,” Dyer said. “They have no evidence to support that proposition.”

David McKnight, an attorney for the health department, said lung illnesses related to vaping pose an imminent threat to public health. The emergency order, which does not apply to specialty tobacco shops, is intended to prevent Utah youth from being exposed to flavored nicotine products, he said, and becoming drawn into a vaping culture that leads to additional injuries.

Utah has identified 98 cases of lung disease believed to be caused by vaping, with 15 more under investigation, McKnight said. So far, one person has died.

“This is a serious outbreak. This is one that takes lives, one that causes lifelong injury," McKnight said. "If this rule can save one young person, I think it’s worth it.”

But Judge Keith Kelly repeatedly pressed McKnight to explain the health department’s reasoning for the emergency order, including asking why the standard 45-day rule-making procedures would be insufficient. In addition to the emergency ban, the Utah Department of Health is pursuing permanent rules around the sale of vaping products.

It is currently illegal for children to purchase tobacco products, including flavored nicotine vapes, and the emergency rule continues to allow the sale of flavored vaping products at specialty shops that cater to an adult clientele.

“The question, though, is how is the process of children walking into a retail store, seeing products on the shelves that they are not able to buy, an imminent peril to public health?” Kelly asked. “That couldn’t have waited for the administrative process?”

McKnight said the department wanted to limit exposure to youths in the retail locations where they are likely to encounter vape sales. And he also suggested that the vaping shops were either exaggerating the impact of the ban on their business, or failing to obtain the appropriate license for a specialty shop, since general retail stores are prohibited from doing more than 1/3 of their overall business in tobacco sales.

“This rule is not meant to be a major, substantial impact that would make them go out of business,” McKnight said.

Dyer, the vape shop attorney, said his clients agree that there is a health crisis related to vaping. But that crisis, he said, is primarily driven by illegal marijuana and not legal nicotine products.

And by banning flavored vapes, he said, the health department will effect irreparable harm on businesses that sell e-cigarettes without proper authority and without addressing the threat to public health.

“If kids have lung problems, why don’t we ban cars? Or why don’t we ban cigarettes?” Dyer said. “Can they do that, judge? I don’t think so.”

Asked about the known causes of vaping-related lung illness, McKnight said that most documented cases appear to correlate with the use of illegal marijuana products, but that some patients have also used nicotine vapes.

“We don’t have conclusive evidence yet of what’s fully causing this outbreak,” McKnight said.

Kelly, the judge, said he would take the matter under advisement and issue a ruling on the next business day, which in this case is Monday.