Judge halts Utah’s emergency restrictions on selling flavored vaping products

(Tony Dejak | AP file photo) A man using an electronic cigarette in Ohio earlier this year. On Monday, a judge delayed a Utah Department of Health emergency rule that would bar most stores from selling flavored e-cigarettes.

Utah stores — not just tobacco specialty shops — will be allowed to sell flavored vape products for a while longer.

A judge in Utah ruled Monday morning that a state cannot immediately enact an emergency ban on flavored e-cigarette products for general retailers, like grocery and convenience stores.

The state had justified emergency restrictions on the popular flavored nicotine products by arguing they attract young people to vaping, and that can eventually lead those consumers to illicit THC products — the kind that have been implicated in an outbreak of serious lung illnesses nationwide. There were 109 confirmed cases in Utah as of Monday, most of them affecting patients age 30 or younger, according to state health officials.

But the Utah Department of Health did not show that new customers of flavored nicotine vape products were likely to immediately switch to THC products, 3rd District Judge Keith Kelly wrote in a ruling Monday.

“Notably ... the word ‘flavor’ does not appear anywhere in the UDOH’s official analysis,” Kelly wrote. Nicotine users who “eventually move on to vaping THC” do not face the kind of “imminent peril” that would justify the state imposing emergency restrictions on nicotine products, Kelly wrote.

Without that immediate risk, Kelly added, the state should follow its normal 120-day procedures for making new rules.

Kelly also noted that nicotine products already may not be sold to anyone under 19, and the state’s emergency rule only applied to general retailers, “where minors can see such products, but cannot purchase them.”

“Again, UDOH offers no explanation of why such visibility issues create an imminent peril that could not be addressed in the normal 120-day rulemaking process,” Kelly wrote.

Kelly also agreed that retailers could suffer irreparable harm under the restrictions; business owners who sued over the rule said that vape products bring a number of repeat customers into their stores, and those customers buy other products, too.

Phil Dyer, the attorney who represented Utah vaping product sellers in the push against the emergency restrictions, said after the ruling Monday that while there are concerns over THC, "We’re also just trying to stay in business.”

He said his clients are not “trying to be in an adversarial position with the health department.” They would like to work with officials to make a rule that works for everyone, he said. Those negotiations started before the emergency filing, he added, and said he hopes those conversations will continue.

He has suggested that retailers be allowed to sell the flavored vape products as long as they post a sign about the required age restrictions. Another proposal would be to not allow anyone under 19 into speciality shops.

For now, Dyer said he’s happy with the ruling.

“The judge was faced with a hard decision,” Dyer said. "And he was courageous in his ruling. We’re grateful.”

But health officials said the businesses that objected to the rule “represent a small minority of tobacco businesses.”

“Most general tobacco retailers and specialty tobacco shops are already in compliance with the emergency rule, and we encourage them to remain so," health officials wrote in a prepared statement Monday.

Under the emergency restrictions, general retailers could sell only tobacco-flavored vape products. The emergency order did not apply to specialty tobacco shops that sell flavored vaping products to an adult clientele.

Kelly’s ruling is only a temporary stop on the emergency restrictions; hearings over a permanent injunction will continue in November, said Tom Hudachko, spokesman for the Utah Department of Health.

“We are disappointed in the outcome of today’s [ruling],” the department statement read. “Our top priority is stopping the outbreak of vaping-associated lung injuries, and we believe the emergency rule is one of the tools that can help us achieve that goal.”

Dyer said if that moves forward, he’d likely fight it, too. But he hopes the state will revise their plans.

The ruling Monday also doesn’t prevent the state from trying to implement permanent restrictions on its normal 120-day timeline — a process that has already begun, Hudachko said.

The state’s concern grew out of a rise in lung illnesses related to vaping in Utah. As of this week, there are 109 confirmed cases — up 11 from last week. Some of those are new hospital stays while some are older cases being added to the tally, Hudachko added.

“It’s a combination of both," he said. “There’s some delay in the reporting based on when health care providers report to us.”

Tribune reporter Courtney Tanner contributed to this article.