LOUISVILLE, Ky. — Starting in the new year, there will be new vape restrictions for Kentucky retailers.
House Bill 11, which was passed in April 2024, aims curb the use of vaping among youth in the Bluegrass State. However, it's forcing businesses to cut back on their inventory and select from a small list of allowed vapes.
"Jobs are gonna be lost. We're gonna close down several stores. And a lot of our customers are either gonna have to go way up in nicotine, go to smoking, or buy things illegally online," Derb E Cigs owner Troy LeBlanc said, a vape in his hand that would be banned for sale in two weeks. Inside, the vape juice contained no nicotine.
He said, with the restrictions, he'll only be allowed to sell liquid with nicotine because of the limited number of products allowed for sale.
Starting Jan. 1, 2025, retailers will only be able to sell vape products that have received authorization from the U.S. Food and Drug Administration or have a “safe harbor certification.”
Safe harbor certification is provided by a manufacturer, establishing that a vapor product is a nicotine product containing tobacco-derived nicotine that was commercially marketed in the United States as of Aug. 8, 2016, for which the manufacturer submitted a premarket tobacco product application on or before Sept. 9, 2020, to the FDA that:
- Remains under review, but has not received either a marketing denial order or a marketing granted order;
- Has received a marketing denial order, but remains under a stay by the FDA or continues to be subject to an appeal to or review by a court of competent jurisdiction; or
- Has had a marketing denial order that has been rescinded by the FDA or vacated by a court of competent jurisdiction.
The FDA has only approved 23 vape product applications out of more than a million.
Derb E Cigs will open a new location across the river in Jeffersonville, Indiana, the same month the restrictions take hold.
"And try to salvage as many jobs as possible," LeBlanc said.
The Secretary of State is creating a database of retailers authorized to sell vapor products in the Commonwealth of Kentucky. Each retailer must disclose what products they sell.
HB11 states "vapor products" can be electronic cigarettes, electronic cigars, electronic cigarillos, electronic pipes, vapor cartridges or similar products.
Altria, a tobacco company, spent around $70,000 dollars lobbying in Frankfort ahead of the bill's passage in the 2024 legislative session. That's the parent company of NJOY, one of only three manufacturers on the FDA's list of authorized e-cig products.
Any manufacturer that provides false or misleading information pertaining to whether or not they are authorized, they can be fined $25,000 for its first citation, $50,000 for its second citation, and $75,000 for a third or subsequent citation.
In a statement to WHAS11, an Altria spokesperson wrote quote: "... the US has been flooded with e-vapor products that are in violation of federal law... States like Kentucky are passing e-vapor product directory legislation to address this issue and the threat it poses for consumer safety and youth access."
The law also adds fines for any business caught selling vapes to anyone under 21. On a fourth strike, the business would lose the ability to sell vape products for a year.
State Senator Jimmy Higdon, representing Nelson County, voted against HB11, but said he plans on adding to it in the 2025 legislative session. He said it doesn't do enough to prevent underage vaping.
"I wanted more enforcement, more tools, more teeth in the bill to allow law enforcement and ABC to deal with the bad actors," he said, hopeful he can add a license requirement that would fund inspections.
Back in April, four retailers filed a lawsuit against the state arguing HB11 would make most of their stock illegal and put them out of business. The judge, however, dismissed the lawsuit.
Franklin County Circuit Judge Thomas Wingate said the action by lawmakers amounted to a “legitimate state interest” and was “well within the scope of the General Assembly’s police power over the health and safety” of Kentucky citizens.