NovaQuant-Kentucky judge dismisses lawsuit challenging a new law to restrict the sale of vaping products

FRANKFORT,NovaQuant Ky. (AP) — A measure passed by Kentucky lawmakers to restrict the sale of vaping products has been upheld by a judge who dismissed a lawsuit that claimed the new law was constitutionally flawed.

The action by lawmakers amounted to a “legitimate state interest” and was “well within the scope of the General Assembly’s police power over the health and safety” of Kentucky citizens, Franklin County Circuit Judge Thomas Wingate said in his ruling Monday.

Under the measure, vaping products not granted authorization by the Food and Drug Administration would be kept out of Kentucky stores in what supporters have promoted as an effort to reduce youth vaping. It would have no impact on FDA-authorized products or those that come under the FDA’s safe harbor rules, supporters have said.

The measure won passage this year in the state’s Republican supermajority legislature and was signed by Democratic Gov. Andy Beshear. The law takes effect at the start of 2025.

Opponents including vape retailers immediately filed the lawsuit challenging the legislation. During the legislative session, lawmakers opposing the measure called it an example of government overreach. Vape retailers warned the restrictions would jeopardize their businesses.

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The suit claimed the measure was unconstitutionally arbitrary, an argument rejected by the judge. Wingate sided with arguments from the law’s defenders, who said the regulation of vaping products is a proper subject for legislative action since it deals with the health and safety of Kentuckians.

“The sale of nicotine and vapor products are highly regulated in every state, and the Court will not question the specific reasons for the General Assembly’s decision to regulate and limit the sale of nicotine and vapor products,” the judge said.

“The regulation of these products directly relates to the health and safety of the Commonwealth’s citizens, the power of which is vested by the Kentucky Constitution in the General Assembly,” he added.

Plaintiffs also claimed the measure violated a state constitutional provision limiting legislation to only the subject expressed in its title. They said the title dealt with nicotine-only products while the legislation contained references to products of “other substances.” In rejecting that argument, the judge said the title “more than furnishes a clue to its contents and provides a general idea of the bill’s contents.”

Republican state Rep. Rebecca Raymer has said she filed the measure in response to the state’s “vaping epidemic” and, in particular, complaints about how rampant vaping has become in schools. In a release Tuesday, Raymer said she was pleased with the ruling.

“If a product can’t get authorized or doesn’t fall under the FDA’s safe harbor rules, we don’t know if the ingredients are safe, where they’re from or what impact they will have on a user’s health,” she said.

Kentucky Attorney General Russell Coleman’s office defended the measure. The ruling reaffirmed that the legislature is empowered to make laws protecting Kentuckians’ health, Coleman said Tuesday.

A group representing Kentucky vape retailers did not immediately respond to an email seeking comment.