Saturday, March 30, 2024

Beshear gets bill to limit vaping products to those OKd by FDA; Ky. Youth Advocates calls for enforcement of underage-sales law

By Melissa Patrick
Kentucky Health News

A bill to reduce underage vaping by limiting legal sales to products approved by the U.S. Food and Drug Administration, and creating a database of retailers that sell the products, passed the legislature in its closing minutes Thursday night and was delivered to Gov. Andy Beshear for his signature or veto. 

Opponents of the bill say it would not curb underage use of vape products, but will hurt small businesses and help large companies that lobbied for it. 

Rep. Rebecca Raymer
House Bill 11, sponsored by Rep. Rebecca Raymer, R-Morgantown, was amended in the Senate to include parts of Senate Bill 344, sponsored by Sen. Brandon Storm, R-London. 

"Both he and I shared the goal of getting these vape products off the market that were being geared toward our children," Raymer said at the Senate Judiciary Committee meeting held hours before it passed the Senate and won concurrence in the House. 

The bill passed the Senate 29-7-1 on Thursday, March 28. Sen. Karen Berg, D-Louisville, cast the "pass" vote. Voting no were Republicans Shelley Funke Frommeyer of Alexandria, Jimmy Higdon of Lebanon, Robby Mills of Henderson, Adrienne Southworth of Lawrenceburg and Stephen West of Paris, and Democrats Robin Webb of Grayson and David Yates of Louisville. 

The House agreed to the changes and sent the amended bill to Beshear on a 64-27 vote, ending a day of debate that began in the Senate Judiciary Committee.

Committee discussion

Raymer said HB 11 simply lines up Kentucky's law with what the FDA says is legal, noting that the majority of vaping products being confiscated in schools are flavored disposable products form China. 

"And they are illegal in China, and they're only being made for sale in the U.S.," she said, adding later, "We are not making anything illegal. We are simply following what the FDA has put in place." 

Troy LeBlanc, a retailer and manufacturer of vape products, spoke against the bill, stating  that it is "essentially creating a monopoly for Juul. It's one of the very few products that would be left." Juul is a Japanese company in which Altria Group, formerly Philip Morris Cos., owns a 35% stake.

"I  would have to close my stores, and closing my stores means I fire 50 people here in the state," LeBlanc asserted. "And we simply can't compete having vape stores have the exact same 15-20 products as every gas station," which he said are the biggest source of vapes for underage people. 

He said transcripts from an earnings calls with Altria show that if electronic cigarettes are restricted, the company's earnings per share will go up because they will sell more tobacco. "It's the reason why they're pushing this bill so hard," he said. Kentucky Lantern reports that Altria is pushing similar bills in other states. 

Greg Troutman, a lawyer for the Kentucky Smoke-Free Association, and LeBlanc urged the committee to hold the bill until January 2026 to give the U.S. Supreme Court time to review how the FDA regulates vaping products. "This bill is going to shut everybody down," said Troutman.

He added, "This bill is not going to keep them out of the hands of kids" because they will buy them online. "Do we want our kids ordering in bulk from China? . . . these are going to order them in bulk and take them to school and use them and sell them." 

Senate debate

Yates said he didn't think the bill would protect minors. He called for future bills to limit the sale of vape products in places that only serve those 21 and older and to put more money into enforcement. This bill, he said, will put "mom and pop" vape shops out of business. 

"Against the best efforts, we are creating a monopoly for one particular brand," he said. "We are getting rid of the other brands that even have lower nicotine products in them." 

Berg said castign a "pass" vote was difficult because she supports efforts to decrease underage vaping but there are issues with how the products are approved by the FDA and the exorbitant cost to get a product approved that have led to "only one product can be sold in the state."  

While voting "no," Funke Frommeyer called the bill "very disruptive to many small businesses in my Senate district. I need to stand up for them."
Sen. Reginald Thomas, D-Lexington, acknowledged the hardship for small vape shops, but said when it comes down to it he had to vote "yes" and vote "on the side of our young people and their health and their concern."

House debate

Rep. Savannah Maddox, R-Dry-Ridge, said she voted against the bill because it is already illegal to sell these products to minors. "What this is, is big government, nanny-state overreach," she said. "Today it's  these products; what is it tomorrow?" 

Rep. Richard White, R-Morehead, said he supported the bill because of the dangers these products pose to young people. He told a story of a 15-year-old who was on one of his church's vans who had to be taken to a hospital after he overdosed on a vape that someone gave him.

"These things are so unregulated and been brought in from places that are not legal," he said. "I urge everybody to vote yes to help protect our kids." 

Rep. Ken Upchurch, R-Monticello, said he has a son who will soon turn 15 that he worries about every day. He said he would be voting "yes" to protect him and "I don't care who gets put out of business."

In its final form, the bill was not a big hit with Kentucky Youth Advocates

“We had hoped to celebrate HB 11 as a win for kids this legislative session, but at this point, it looks as if adult special interests are winning the day,” KYA Executive Director Terry Brooks said in a press release

“What’s clear is that Kentucky’s kids are facing a vaping epidemic, orchestrated by ‘big vape’ companies through marketing and sweet flavors. What’s also clear is that kids are getting their hands on vapes through local retailers despite state and federal tobacco-21 laws prohibiting selling to those underage. What is unclear is why the Kentucky General Assembly continues to move the focus away from enforcing underage sales law and taking meaningful steps to reduce youth initiation of these addictive nicotine products.”

What's in the bill? 

The final version of the bill defined "authorized vapor product" to only include vapor products and added online retailers. It did not include the product directory from Storm's original bill, and it kept the stiffer penalties from Raymer's bill. 

Asked about the online sale of these products, Storm told reporters, "If you're an online retailer and you're going to do business in Kentucky, you need to make sure that your items are compliant. And if not, you're gonna be held accountable."

HB 11 would only allow FDA-approved vaping products to be sold in Kentucky, along with those that have received a "safe harbor certification" for products that fall under several qualifications, including those that remain under review, but has not yet been denied or approved for sale.

It would also require businesses that sell vaping products to acknowledge that in their annual business filings with the secretary of state, who would send a list monthly to the Department of Alcoholic Beverage Control and the Department of Revenue. ABC, which is already responsible for enforcing laws aimed at limting youth smoking, would be responsible for creating a system that identifies and publishes the retailers who violate the law.

If the bill becomes law, it would fine retailers $100 to $500 for a first offense of selling vaping products to anyone under 21, which is consistent with existing law. The penalty for a second offense would be $1,000 and $5,000 for a third  or subsequent violation. A retailer with a fourth violation in two years would be banned from selling vapes. The bill also sets fines for manufacturers and wholesalers.

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