Kentucky E-cigarette Lawsuit Seeks to Overturn State Ban

According to a report by Lexingtonky on April 24th, four e-cigarette shops in Kentucky, the Kentucky Association of E-Cigarette Retailers, and the Kentucky Cannabis Association have filed a lawsuit in Franklin Circuit Court, seeking to overturn a state law that prohibits the sale of products other than those approved by the FDA.

Greg Troutman, a lawyer for the Kentucky Smoke-Free Association, said, "We hope to have a resolution before the law takes effect on January 1, 2023."

The lawsuit was filed last Friday (the 19th), with e-cigarette retailers arguing that the definition of "e-cigarette products" and "other substances" in House Bill 11 conflates e-cigarettes, cannabis e-cigarettes, and cannabis products, making it overly broad and arbitrary, failing to meet the requirements of the state constitution. Troutman also argues that it requires retailers to comply with regulatory procedures that do not exist for cannabis and other non-nicotine products, thus violating due process. The lawsuit states that once the law goes into effect, retailers will be penalized for selling cannabis derivatives.

Supporters of HB 11 tout the bill as a way to curb underage e-cigarette use by limiting the sale of "authorized products" or those products that are certified under a "safety harbor" with the U.S. Food and Drug Administration (FDA). The bill has received support from Altira, with records submitted to the Legislative Ethics Committee showing that Altira has spent over $500,000 on lobbying efforts since January 2022.

In this lawsuit, it is claimed that the new law requires the FDA to approve products that cannot obtain FDA approval, as the FDA does not have regulatory procedures in place for them, such as products containing Amanita muscaria and marijuana derivatives. According to the lawsuit, a law passed by the legislature last year will also apply to marijuana e-cigarette products set to be launched in Kentucky in 2025.

The lawsuit also alleges that the new law violates a provision in the state constitution that limits laws to a single subject. The lawsuit argues that the title of HB 11 is "An Act relating to products containing nicotine," but it applies to non-nicotine e-cigarette products, such as marijuana-derived products.

The defendants are Allyson Taylor, an official with the Kentucky Department of Alcohol Beverage Control, and Michael Adams, the Secretary of State.

In the final days of the conference, lawmakers merged House Bill 11 and Senate Bill 344, the latter establishing an e-cigarette registry. Governor Andy Beshear signed the merged bill on April 5th.

E-cigarette vendors say that this law could create a monopoly for large retailers and harm small businesses.