State Senate weakens bill to curb underage vaping and sends it to the House with just days left in the legislative session

By Melissa Patrick
Kentucky Health News

A bill set up a regulatory framework to curb underage vaping passed out of the Senate on Thursday, March 21, but hasn't yet been assigned to a committee in the House, with only a few days left in the legislative session.

State Sen. Brandon Storm

Senate Bill 344, sponsored by Sen. Brandon Storm, R-London, passed 29-8-1 with a floor amendment that reduced the civil penalties in the original bill and made some technical changes. 

Storm said the goal of the bill is to clean up the illicit market in electronic vaping devices. He said it would require an e-vapor manufacturer to certify to the state that the products it sells comply with federal regulations. 

It would also require the state to publish a list of compliant products in a directory, which would allow manufacturers, distributors and retailers to know exactly which products could be sold in Kentucky. "Today, there is ambiguity," he said.

"This solution will improve how these products are distributed and sold and will reduce underage exposure and use while also providing adult smokers access to less harmful smoke free alternatives," said Storm.

The bill also includes a list of terms that couldn't be used to "advertise, distribute, market, offer for sale, or sell a vapor product," including "cake," "candy," "cupcake," "pastry," or "pie." It also states that any "advertising, design, marketing, packaging, or trade dress" cannot include a food or symbol that is marketed to minors, or be advertised on school supplies primarily used by minors. 

As amended, the bill would impose a civil penalty of $250 for each product offered for sale in violation of the rules until the product is removed from inventory or until the offending product is properly listed in the directory. The second violation at the same location within a 12-month period would be $500 per product. The third violation would be $1,000 per product and the fourth or subsequent violation would be $1,500 per product.

The original bill included an initial penalty of $500 per day, with a second violation in a year bringing a 14-day suspension of the store's business license. The third violation would have resulted in a 60-day suspension subsequent violations would result in a one-year suspension. 

Sen. David Yates, D-Louisville, said the way to decrease e-cigarette access to young people is to restrict their sales in convenience stores and to only put it in stores that allow people who are 21 and older. And, he said, it's imperative to have strong enforcement laws. 

"If you do have someone that's selling to children, we hit them with these monster fines and penalties that have been recommended and couldn't pass today. You shut them down. You hold them accountable," he said. "But instead, what we're going to do is we're going to protect a monopoly and ultimately allow tobacco sales to increase." 

Yates also noted that the U.S. Court of Appeals for the Fifth Circuit has ruled that the FDA process in approving which products can be sold is "arbitrary and capricious," and the case is going to the U.S. Supreme Court.

"So with our passage today, we know if anything, we're going to cost our taxpayers a whole lot of money in litigation," he said. "But let's do that, because we're being lobbied by a very, very strong group." 

According to the 2021 Youth Behavioral Risk Factor Surveillance System data, 45% of Kentucky's high-school students said they had used an electronic vapor product, 22% were current users, 8% were frequent users, and 7% used the products daily. Asked how they got them, 12% said they usually bought them at a convenience store, supermarket, discount store or gas station.

Among Kentucky middle-school students, 24% said they had used an electronic vapor product, 11% said they were current users, nearly 3% said they were frequent users, and 2% said they used the products daily.

A floor amendment filed by Sen. Jimmy Higdon, R-Lebanon, that would have required retail establishments that sell vapor products to be licensed and much more stringent penalties for violations, among other things, was withdrawn. Higdon said he didn't have the votes to pass it. 

A floor amendment filed by Sen. Adrienne Southworth, R-Lawrenceburg, failed to pass. It would have exempted from the "vapor products" definition those with 20 milligrams of nicotine per milliliter or less and those used in an open vaping system.

A bill similar to SB 344, House Bill 11, passed the House on March 11 and has been assigned to the Senate Licensing and Occupations Committee, but has not yet been heard.

The legislature, which can meet for only 60 days, must finish by April 15, unless the governor calls a special session. This session has six days left: Monday through Thursday of this week for passage of bills, followed by a recess during which the governor can sign or veto bills, then two days for legislators to reconsider vetoed bills. Those days are Friday, April 12, and Monday, April 14.