Vaping bill stripped of licensing requirements and stiffer penalties passes House; sponsor says alternate bill on retailing is expected

By Melissa Patrick
Kentucky Health News

The House passed a watered-down bill to address youth vaping Thursday, Feb. 22, after a committee removed provisions to require vape shops be licensed and raise penalties for their violations. 

Rep. Mark Hart, R-Falmouth

The bill's sponsor, Rep. Mark Hart, R-Falmouth, told Kentucky Health News that he took out the licensing and penalty provisions because Rep. Rebecca Raymer, R-Morgantown, was expected to file a bill to address those issues without the education components of his bill. The deadline for new House bills is Monday, Feb. 26, but new legislation can also be added by amendments.

"So I pulled all the education stuff out of the vaping bill and I carried just that portion," he said. "So my bill only addresses how to  deal with vaping for kids in the  school system."

Ben Chandler, president and CEO of the Foundation for a Healthy Kentucky, said it is unnecessary to put youth penalties in law because schools already have that authority, but licensing vape shops is critical. 

"I don't think there's any question about this, you need to license the people who sell the vapes. We don't even know who's selling the vapes. That's the first thing," he said. " And then the second thing is, you need to do something about these flavors. It's well established that the kids are attracted to the flavors. And why the legislature won't do something about the flavors is a mystery to me." 

Chandler said it is time to solve this problem, and Hart's bill will not do that. "I would think you'd want to try to find the solution, and this is not it." 

Griffin Nemeth, coordinator of the University of Kentucky's #iCANendthetrend Youth Advisory Board, said in an email that tobacco retail licensing should be a priority because it has helped reduce youth nicotine use in the approximately 40 of 50 states that have some form of licensing.

Tobacco retail licensing "faces particularly strong opposition in Kentucky despite its success in other states," Nemeth said. "The removal of the vapor retail licensing component of HB 142 is not surprising and will likely improve its chances of being passed."

The current version of House Bill 142 would require school districts to adopt specific policies that penalize students for possessing "alternative nicotine products, tobacco products, or vapor products." 

The policy would require the school to confiscate nicotine products from students and, if it's a first incident, to give the student and family evidence-based, age-appropriate information about nicotine cessation. A second incident would require the student to receive disciplinary action established by the school's policies. 

Any incident beyond a second offense would require the student to receive an in-school or out-of-school suspension. Upon suspension, the school must also provide the opportunity for the student to complete an evidence-based, age-appropriate nicotine education program during an in-school suspension. 

Asked why such policies need to be legislated, Hart said it is important to put these requirements into law because it gives school administrators something to "hang their hat on" when they confiscate products and penalize students. 

"They could write their policies and stuff, but now that we're making this a law, it's going to give the administrators some teeth . . . this will give them some protection because this says in law now, you've got to do this." 

One of the challenges administrators are facing, he said, is that parents don't want their kids punished for vaping and want their vaping devices returned to them because they are buying these products for their kids. 

"We've got parents out there that think it's perfectly safe and all right for their kids to vape," he said.  

The 2021 Youth Risk Behavior Survey found that 4.9% of Kentucky high-school students said they smoked cigarettes and 21.9% said they used electronic vapor products. Among middle schoolers, 1.7% said they currently smoked cigarettes and 11.3% used a vapor product. “Current use” is considered having used a product at least once during the 30 days before the survey.

Among other things, the bill requires school boards to report the number of nicotine-related behavior incidents in schools and the number that required medical intervention by Aug. 1 of each year to the state Department of Education, which would have to compile the data and submit it to the legislature before Sept. 1.

Hart said the reporting requirements will allow legislators to track this issue: "In a couple of years, if things aren't getting any better or it is still as big a problem as it is, then we can take steps to change the law or do whatever we have to at that time."