Starting Jan. 1, new restrictions on vaping products will take effect, limiting the number of products Kentuckians will see in stores.
Vapor store owners in the state say they will be hit hard by the new restrictions while supporters say it is an attempt to rein in underage vaping and ensure the safety of existing vape products.
House Bill 11 prohibits wholesalers from selling vape products that don’t have Food and Drug Administration authorization or a “safe harbor” certification. It also requires the creation of a “tobacco noncompliance database” to identify retailers that don’t comply with the act.
“This started out because I was contacted by school officials in my district, and I know other representatives have been contacted as well about how rampant the vaping is in our schools,” said the bill’s lead sponsor Rep. Rebecca Raymer, a Republican from Morgantown, when the bill was in the committee process. “Looking further I found out that these vapes are really not even supposed to be offered for sale per the FDA.”
Some sellers have fiercely opposed the bill, saying it benefits big vape companies like Juul while hurting small businesses, including by restricting the sale of some products containing lower nicotine levels. Business owners also argued it wouldn’t benefit children as they are already restricted from using the prohibited products; Kentucky has already set an age limit on vape products at 21 years old.
Safe harbor certification means the manufacturer submitted a premarket tobacco product application on or before Sept. 9, 2020, to the FDA that remains under review or appeal. Only 27 e-cigarette products and devices have received FDA approval. Most recently, four NJOY products won authorization — it’s a brand owned by Altria, one of the world’s largest cigarette manufacturers. Altria also lobbied in favor of HB11, spending more than $146,000 in 2024 alone.
Some vapor store owners question whether they will have any effect on youth vaping. For example, the FDA recently rescinded its order to take Juul vaping products off the market. Juul is also one of the products that have become associated with youth vaping.
Keith Hadley, a co-founder of the Kentucky Smoke Free Association, said the bill won’t help prevent kids from vaping. Hadley said it will only hurt small businesses like his. He shuttered his own vapor shop in Buckner, Kentucky earlier this month, due to the anticipated effects of the new law.
“The way it's set up, small businesses will fail. They will close,” Hadley said. “Now, the FDA did approve some local companies, but that's only a temporary Safe Harbor. Then they can just say, overnight, ‘Hey, never mind. We changed our mind,’ and then those companies will have to pull their products from their shelves.”
A coalition of vapor stores, including the Kentucky Smoke Free Association, sued over HB11, challenging its constitutionality shortly before the 2024 legislative session ended. However, a Franklin Circuit Court judge dismissed the complaint a few months later, saying he didn’t believe the law violated the state constitution. The complainants have appealed that decision.
Hadley said they hope to convince the legislature to push enforcement of the law another year, to give vapor shop owners time to adjust or tie up loose ends before closing their doors.
“It was one thing after another. We've been fighting against the state, trying to work something out, and they do not want to work anything out,” Hadley said.
Rep. Savannah Maddox, a Republican from Dry Ridge, argued vehemently against the legislation on the House floor in March, saying every year there are bills that cause the most problems for constituents.
“This will be that bill where our constituents say, ‘Why did you vote in favor of banning this particular product for adults to use?’ Because, as we all know, it is every bit as illegal for minors to purchase this product as it is for them to purchase alcohol,” Maddox said. “This is being proposed as something that is designed to reduce harm in minor children, when in reality, it will do no such thing.”
State government and politics reporting is supported in part by the Corporation for Public Broadcasting.
