Challenges to Kentucky’s E-Cigarette and Cannabis Legislation Stay

According to a report by Yahoo on April 17th, the e-cigarette and marijuana industries in Kentucky are challenging the constitutionality of a recently passed e-cigarette bill by the legislature. Four e-cigarette retailers, along with the Kentucky E-Cigarette Retailers Association and Kentucky Cannabis Association, filed a lawsuit in Franklin Circuit Court on Friday (the 12th) against House Bill 11.

According to House Bill 11, retailers can only sell e-cigarette products that have been certified by the United States Food and Drug Administration (FDA).

Retailers strongly oppose this measure because the FDA has only approved 23 out of over one million e-cigarette product applications. These store owners argue that restricting them to selling such a small number of products would lead to their closure, as most of their inventory would not be able to be legally sold.

The lawsuit claims that the law in question violates a part of the state constitution as well as the 14th Amendment of the US Constitution, which guarantees due process. The plaintiffs argue that "cannabis-derived products, including cannabis vaping products, are not regulated by the FDA, so there is no 'lawful market pathway' for them and other products to be sold in Kentucky under the state's medical marijuana program." Additionally, the lawsuit alleges that the law violates a part of the Kentucky state constitution. The title of House Bill 11 suggests it pertains to "nicotine-containing products," but in reality, the law applies to a broader category of "vapor products" that do not only contain nicotine, which violates the constitution.

The defendants in this lawsuit are Allyson Taylor, the director of the state's Alcohol Beverage Control Division, and Michael Adams, the secretary. In addition to restricting the sale of e-cigarette products, the bill also strengthens regulation of retailers by allowing the use of data collected by the Secretary of State to create a list of businesses selling e-cigarette products. The state will enforce a ban on selling e-cigarette products to those under 21 using this list.

Retailers who sell e-cigarette products to individuals under 21 years of age will face more severe penalties under the new law: a first offense could result in a fine of up to $500, a second offense could result in a $1000 fine, and a third offense could result in a $5000 fine. Retailers who violate the law four times within two years may be prohibited from selling e-cigarette products for one year. The law is expected to take effect in 2025.