Vape retailers, hemp industry file suit challenging constitutionality of new state law

Kentucky’s vaping and hemp industries are challenging the constitutionality of a bill intended to curb youth vaping that passed this legislative session.

Four vape retailers, including one based in Lexington, along with the Kentucky Vaping Retailers’ Association and the Kentucky Hemp Association, filed a lawsuit Friday in Franklin Circuit Court challenging House Bill 11.

Under the bill, Kentucky retailers will only be able to sell vape products that have been approved by the U.S. Food and Drug Administration or have a “safe harbor certification.“

Retailers strongly opposed the measure, since the FDA has only approved 23 vape product applications out of more than a million filed. Vape retailers argued that limiting them to so few products will put them out of business, since most of their stock will become illegal for sale.

The lawsuit alleges that the bill violates a section of the state constitution as well as the 14th amendment to the U.S. Constitution, which grants due process, since, the plaintiffs say, “hemp-derived products, including vapeable hemp products, are not subject to regulation by FDA,” so there is no “regulatory market pathway” that would allow them and other products such as “vapeable marijuana products which will be available pursuant to Kentucky’s medical marijuana program” to be sold in Kentucky.

The plaintiffs also argue in the suit that the new law violates a section of the Kentucky Constitution that limits a piece of legislation to only the subject expressed in its title. According to the lawsuit, the title of H.B. 11 indicates that it relates to “nicotine products,” but the bill actually applies “to a broader scope of ‘vapor products’ which are not limited to those containing nicotine,” in violation of the constitution, according to the suit.

The lawsuit names as defendants Allyson Taylor, commissioner of the Kentucky Department of Alcoholic Beverage Control, and Secretary of State Michael Adams, in their official capacities.

In addition to limiting the products that can be sold, House Bill 11 tightens regulation of retailers by allowing a list of businesses selling vaping products to be created using data collected by the secretary of state. The state Department of Alcoholic Beverage Control will then be able to use the list to enforce the prohibition on the sale of vaping products to those under 21.

Retailers found to be selling vaping products to people under 21 will be subject to tougher penalties: fines of up to $500 for a first offense; $1,000 for a second offense and $5,000 for a third offense, under the new law.

Those with four offenses in a two-year period will be prohibited from selling vape products for a year.

The legislation is set to take effect Jan. 1.

One of the four vaping companies that filed the lawsuit is 723 Vapor, which is based in Lexington and has six retail locations in Fayette County and Louisville.