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Judge overturns ban on sale of flavored vape juices

Posted at 8:04 AM, Oct 28, 2019
and last updated 2019-10-28 19:53:46-04

SALT LAKE CITY -- A judge has overturned an emergency rule banning the sale of flavored vape juices.

In an order issued Monday morning, 3rd District Court Judge Keith Kelly said the Utah Department of Health overstepped its authority in implementing the emergency rule, rather than following an administrative rule making process.

"In addition, I’m also persuaded the plaintiffs have shown that enforcement... would cause irreparable harm. Thus I’m granting the plaintiffs request for a temporary restraining order," he said.

The ruling is a big win for vape shop owners statewide, meaning they can continue to sell flavored juices and e-cigarette products. Juan Bravo, the president of the Utah Vapor Business Association and a vape shop owner, said he'd already seen a dramatic decline in business and was facing bankruptcy.

"We were down at least 65%. So it was unsustainable," he told reporters outside court. "So this is really, really good news."

Vape shops sued after the Utah Department of Health implemented a rule blocking non-licensed specialty tobacco shops from selling flavored e-cigarette products. The agency argued it was to help stem an outbreak of vaping-related illnesses. So far, 98 cases have been reported in Utah alone.

The vape shops' attorney argued there is no "emergency" and the rule puts as many as 680 small businesses statewide at risk of economic harm. The outbreak, they argued, was tied to the vaping of illegal THC products and not flavored juices.

"The public health crisis is not related to the products my clients sell. If it were, we wouldn’t have been there in the first place," said Phil Dyer, the vape shops' attorney. "It’s related to an unrelated cause of black market product that we don’t espouse or sell. We’re happy that the department’s doing what it’s doing to try to regulate those products, because we don’t want people getting hurt with unknown substances either."

The Utah Attorney General's Office claimed that while the vaping of illegal THC cartridges was a component, health officials still believed many cases involved regular nicotine juice cartridges. In a statement, the health department said it was "disappointed" with the ruling.

"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," the agency said.

The Utah Department of Health said it would comply with the judge's ruling. Outside court, assistant Utah Attorney General David McKnight suggested they would not seek an emergency appeal to the Utah Supreme Court.

"We’re going to consult with our client but I’m just guessing probably not," he told FOX 13.

The vape shops' emergency restraining order will lapse on Nov. 22. That same day, both sides are scheduled to return to court for a preliminary injunction hearing, where vape shops could seek to make it more permanent.

Dyer said he was hopeful a settlement could be reached. The Utah Department of Health is still pursuing a more formal administrative rule to regulate vaping products. Bravo said they hope the state will now negotiate with his group to reach agreement.

"The emergency’s over black market THC products. Which we agree is a problem, which we agree is a health emergency and we’ve been trying to work with state officials on that," he told FOX 13. "We’re hoping with this now, we’ll be meeting with state officials to go over youth prevention and public health steps we can take to fix the problem."