New Utah law banning flavored e-cigarettes will drive vape shops out of business, industry says

The flavor ban was intended to crack down on teen vaping. Vape shop owners say they plan to sue over the new rule.

(Chris Samuels | The Salt Lake Tribune) A group protests SB61, a proposed bill that would ban the use of flavored vape products, outside the Utah House of Representatives at the Capitol in Salt Lake City, Tuesday, Feb. 20, 2024.

A new law that will ban flavored electronic cigarettes, which supporters say are getting kids hooked on nicotine, will be devastating to Utah’s nearly 200 vape shops, according to a representative of the industry, who intends to challenge the law in court.

The sponsor of that law, pediatrician and Salt Lake Democratic Sen. Jen Plumb, said she has seen kids in the emergency room going through withdrawal because they can’t vape in the hospital and friends whose children are anxious about going without their nicotine on long flights.

Previous efforts to prevent teens from getting e-cigarettes had failed, she said, so she set her sights on eliminating the fruity, sweet-flavored vapes that national data shows 90% of underage users start out using.

“Rather than continuing to kind of fiddle around with little bits and pieces — it’s not doing it. Kids are still getting access,” she said in an interview. “And if kids become hooked on nicotine, they are nicotine users the rest of their lives. Period. That’s just what it is.”

Plumb’s bill, signed into law last month by Gov. Spencer Cox, goes further than just banning flavors — aside from tobacco or menthol. It also bans the sale of any vape product with a nicotine concentration above 4%. And it only allows the sale of products that have either been approved by the U.S. Food and Drug Administration or have submitted an application for approval prior to September 2020.

(Chris Samuels | The Salt Lake Tribune) A group protests S.B. 61, a proposed bill that would ban the use of flavored vape products, outside the House of Representatives at the Capitol in Salt Lake City, Tuesday, Feb. 20, 2024.

Nobody knows how many products will have to be removed from shelves. To date, there are only 17 FDA-approved products from three manufacturers that meet the criteria, and an FDA spokeswoman said they don’t know how many pre-2020 applications are still pending.

According to Beau Maxon, vice president of the Utah Vapor Business Association and owner of Park City Vapor Company, one thing is certain: It will be a death sentence for many vape shop owners.

“There’s no question about it,” Maxon said in an interview, “it is going to put the retail tobacco specialty industry in jeopardy and you’re going to see a lot of them not able to stay open.”

That’s because in a vape shop like his, Maxon said, 99.9% of the products they sell are flavored — not because they’re targeting kids, but because it’s what his adult customers want.

Indeed, walk into any vape shop and the shelves are lined with flavors like bubblegum, lemon drop, mango, lime, fruit punch — all of which will be outlawed when the law takes effect on Jan. 1, 2025.

While that will threaten Utah businesses like his, Maxon contends it won’t keep products out of the hands of minors. That’s because, according to records the association has gathered from nine of the state’s 13 local health departments, the tobacco shops typically do slightly better than other retailers like gas stations and convenience stores on compliance checks.

Between 2019 and 2023, the general retailers failed compliance checks 8.3% of the time while the tobacco stores and vape shops failed 7.5%, the data shows.

Vape shops, Maxon said, have more to lose if they are hit with violations. If a convenience store makes an underage sale, they pay a $1,000 fine. A vape shop that sells to a minor gets a $5,000 fine and can’t sell any products for 30 days. If there is a second violation in a two-year period, the shop is shut down permanently.

The practical effect of the bill, Maxon contends, is that Utah shop owners will be shut down and customers will be driven to gas stations and convenience stores that mostly sell products manufactured by the massive tobacco companies like Altria, which owns a portion of Juul, and R.J. Reynolds, the maker of the Vuse line of e-cigarettes. Those two brands reportedly control two-thirds of the market.

“This bill is going to put honest business owners out of business. … Retailers will get their cut and Big Tobacco will get their cut,” he said. “This is a monopoly bill for Big Tobacco.”

Plumb has heard that criticism before and said it couldn’t be further from the truth.

“I don’t even know who Big Tobacco is, honestly,” she said. “I’ve never talked with any of them. There have never been any conversations about that. … The impression that some community members have is that the only reason legislation is ever run is so that someone gets some sort of gain. And for me, the gain is protecting these kiddos.”

According to the Utah Student Health and Risk Prevention survey conducted every other year by Utah’s Department of Health and Human Services, the rate of teen vaping is actually declining.

Up until last year, the survey didn’t distinguish between vaping nicotine or marijuana but the number of students in grades six through 12 who reported ever trying either drug fell from 19% in 2019 to 12% in 2023.

When just nicotine vaping was broken out in 2023, an average of 11% of those surveyed had used the e-cigarettes in their lifetime, while 5% said they’d used a vape within the previous 30 days.

Nationally, states that have banned flavored e-cigarettes have seen some reduction in usage, among both adults and youth. One preprint by researchers at three universities found that after Washington, New Jersey and New York eliminated flavored e-cigarettes, 8% of adults quit using them. In a 2022 study focusing on young adults, a team of university researchers found similar results.

A survey of more than 1,400 youth between the ages of 14 and 17 conducted by the Center for Tobacco Research at The Ohio State University reported that 39% said they would quit using e-cigarettes if the only flavor options were tobacco or menthol.

Plumb recognizes that the new law banning products will be disruptive for some vape shop owners, but it was “not my intent to put anyone out of business.”

“I understand that this feels very targeting to them and I don’t love the way that must feel for them. I don’t want people to think that we were flippant about that, because we weren’t,” Plumb said. “But ultimately business models will have to shift and they’ll have to adapt, either with different products or different strategies. … If the product that was a big chunk of their income generator was a product that’s really problematic, then that’s the way it goes.”

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

The backlash to her bill — which passed both the Utah House and Senate with overwhelming, bipartisan support — has been vitriolic, and Plumb said she has received hate mail and threats because of it. During the legislative session, she often had a Utah Highway Patrol trooper following her.

“You commie Democrat. Your job is not to dictate morality,” read one of the emails she received. “Stop messing with American freedoms, you commie. I will go back to smoking cigarettes and blow cigarette smoke in all your faces and laugh when you get lung cancer from secondhand smoke.”

The vape industry pushed for an alternative to the bill that would have beefed up enforcement, required video surveillance at stores and better identification scanners, as well as tracking tags on products so, if a minor is found with an e-cigarette, it can be tracked back to the shop that sold it.

Those proposals failed.

Without other options, shop owners will challenge the law in court over the businesses that will be forced to close, the creation of a monopoly for convenience stores and Big Tobacco products, and potentially other grounds.

“There’s no question about it,” Maxon said. “We will be litigating it.”

Editor’s note • This story is available to Salt Lake Tribune subscribers only. Thank you for supporting local journalism.