Four Kentucky e-cigarette stores, the Kentucky e-Cigarette Sellers Association and the Kentucky Cannabis Association have filed a lawsuit in Franklin Circuit Court seeking to overturn a state bill that prohibits the sale of some products other than those approved by the FDA.
Greg Troutman, an attorney for the Smoke-Free Kentucky Association, said, “Hopefully, we can get this resolved before the law goes into effect on January 1, 2023.”
The lawsuit, filed on Friday, argues that the definition of “vaping products” and “other substances” in House Bill 11 lumps together e-cigarettes, marijuana e-cigarettes, and marijuana products, making it too broad and arbitrary to meet the requirements of the state Constitution. It also violates due process by requiring retailers to comply with regulatory procedures that do not exist for marijuana and other non-nicotine products, Troutman said. Once the law goes into effect, retailers will be penalized for selling marijuana derivatives, the lawsuit says.
Proponents of HB 11 have touted the bill as a way to curb underage vaping by restricting the sale of “authorized products,” or those that have “safe harbor certification” according to their status with the Food and Drug Administration (FDA). The bill is backed by Altira, which has spent more than $500,000 lobbying the legislature since January 2022, according to records filed with the Legislative Ethics Committee.
The lawsuit alleges that the new law requires the FDA to approve products that simply cannot be approved by the FDA because the FDA does not have a regulatory process for them, such as products containing Amanita muscaria and marijuana derivatives. Under a law passed by the legislature last year, the law will also apply to marijuana e-cigarette products that will be available in Kentucky by 2025, the lawsuit said.
The lawsuit also alleges that the new law violates a provision of the state constitution that limits the law to one subject. HB 11 is titled “Acts related to Nicotine Products,” but applies to non-nicotine e-cigarette products, such as cannabis-derived products, the lawsuit said.
The defendants are Allyson Taylor, an officer with the Kentucky Department of Alcoholic Beverage Control, and Michael Adams, secretary of state.
In the final days of the session, lawmakers merged Bill 11 with Senate Bill 344, which created an e-cigarette registry. Governor Andy Beshear signed the merger into law on April 5.
E-cigarette merchants say the law could create a monopoly for big retailers and hurt small businesses.