Several businesses that sell vapes, as well as the Kentucky Hemp Association and Kentucky Vaping Retailers Association, are suing the state government over House Bill 11, which will restrict vape sales starting in 2025.
Among other policy changes, HB 11 will bar businesses from selling vapes that either aren’t authorized by the U.S. Food and Drug Administration or aren’t in the midst of the approval process.
Thousands of nicotine vaping products featuring a dizzying array of flavors are sold across the country, but only 23 have the FDA’s signoff.
HB 11’s lead sponsor, GOP Rep. Rebecca Raymer of Morgantown, said in a March meeting that the goal is to get vape products “off the market that were being geared toward our children.”
“Once [the FDA] became the regulatory authority over this in 2016 through Congress’ direction, they have set guidelines for what could stay on the market,” Raymer said. “We are not making anything illegal. We are simply following what the FDA has put in place.”
A variety of arguments for and against HB 11 were made during public debates before the Legislature passed the law in late March.
But the vape shops’ lawsuit, filed last week in Franklin Circuit Court, challenges the legislation on constitutional grounds.
The lawsuit zeroes in on HB 11’s reliance on defining a “vapor product” in a way that includes devices that feature “vaporized nicotine or other substances.”
The shops’ petition says this definition encompasses not only nicotine vapes but also hemp-derived vaping products they currently sell. And it says the definition is broad enough to apply to medical cannabis vaping products that will become legal in Kentucky next year.
The lawsuit argues this makes the new law unconstitutional for two reasons.
First, it claims HB 11 violates a provision in the Kentucky Constitution that says the Legislature can’t pass a law that relates to more than one subject, and that subject must be specified in its title.
The plaintiffs say HB 11 is titled an “act relating to nicotine products” but actually affects non-nicotine products as well. They argue this effectively violates the constitutional rule.
Second, the lawsuit says hemp-derived vapes generally aren’t regulated by the FDA, which makes it impossible for businesses to comply with HB 11’s requirement that they only sell vapes that have received or are seeking FDA approval.
The suit argues this violates a due process clause in the U.S. Constitution and makes HB 11 an “arbitrary” law, which is prohibited by the Kentucky Constitution.
“I think the Legislature, in their rush to get this passed … they made some mistakes,” attorney Greg Troutman, who represents the plaintiffs, told LPM News. “And if they would simply have changed the ‘vapor product’ definition to take out the words ‘or other substances,’ we wouldn’t be talking right now because there wouldn't be a case. Or if they made a simple title amendment.”
A spokesperson for the Kentucky House of Representatives' leadership told LPM they don't comment on pending litigation.
