Ruling in lawsuit over health department’s emergency vaping rule pushed to Monday

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SALT LAKE CITY (ABC4 News) – After presenting their arguments in court Friday afternoon, multiple vape shop owners and their attorneys will have to wait until next Monday to find out the judge’s ruling on the Utah Department of Health’s emergency rule that temporarily bans the sale of flavored e-cigarette products.

The rule bans general tobacco retailers including grocery stores, pharmacies, and gas stations from selling e-cigarette products. In addition, the rule requires all tobacco sellers to post notices about the danger of vaping unregulated THC, the high-producing ingredient in marijuana that’s been linked to most lung-damage cases in the state.

A group of vape shop owners filed a lawsuit four days ago, the same day that the emergency rule went into effect. Phillip Dyer, attorney for the plaintiffs said their case is focused on the sales restriction part of the rule, not the part about the signs that have to be posted.

“We think this goes beyond the scope of [the health department’s] power to do so. We think what they’re doing is legislating policy, which is not in their authority and we hope the judge will agree with us,” said Dyer.

In the lawsuit, retailers said the health department enacted the rule without public comment and that the ban would cause “irreparable harm to their business reputation to the point that they would be forced to close their business.”

“To say that this is a small portion of the industry is not true,” said Dyer in court. “There are 680 local businesses that would be impacted. Deprivation of due process is imminent harm to these businesses that will lose a lot of money. Some may even be out of business by next week.”

The plaintiffs argued in the lawsuit that the recent cases of lung-related illnesses were caused by unregulated, black market THC vape products. Dyer said in court that none of their shops sell those products.

David McKnight, attorney for the Utah Department of Health said in court that there is currently no conclusive evidence that proves or disproves unrelated THC products are the main or only cause of the 98 reported lung-related injuries.

“Research shows that THC is one of the major players, but it’s not conclusive. 60 percent of those who are sick also vaped non-THC products,” he said.

“Why can’t the health department wait a couple months for research to be done before going through their rule-making process?” asked Judge Keith Kelly.

With one fatality involving a 30-year-old user and 15 more cases being investigated, McKnight argued that the health department issued the emergency rule because of “imminent peril.”

“What do you do in the meantime while people are getting sick? This is a national outbreak and Utah is one of the serious players,” he said. “If this could save even one life, it’s worth it.”

McKnight said the focus of the rule is restricting access of products to youth, leading Judge Kelly to ask, “How is minors seeing vape products on the shelf an imminent peril?”

Since minors under the age of 19 are still allowed to enter general tobacco stores without being able to purchase products, McKnight said that could influence them to eventually use them in the future.

Dyer refuted that claim, saying that minors are still able to see vaping products through other means such as online or through social media. He argued the health department should not act upon the claim that there is an immediate danger to the community without concrete evidence.

Judge Kelly decided not to make a ruling at the end of Friday’s hearing, taking the weekend to look into the case. Counsels from both sides will reconvene at the Matheson Courthouse next Monday at 8 a.m.

“We’ll just have to wait and see until Judge Kelly reviews and deliberates it. He’s a good judge and I think he’ll come up with a good decision on Monday,” said Dyer.

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