To steal a line from Hamlet: (ii)(b) or not (ii)(b)?
That was the question — and the answer almost banned nearly all of the electronic cigarettes sold in Utah.
The intended goal seemed simple enough: In an effort to reduce the number of kids vaping nicotine, lawmakers this past session overwhelmingly approved a new law banning the sale of the fruity and sweet flavored vapes that data shows young people are drawn to.
But nothing is ever simple, and in the last days of the legislative session, lawmakers passed a bill that, due to a typo, is far more sweeping than intended.
Electronic Cigarette Amendments, or SB61, bans the sale of all flavored vapes other than tobacco or menthol. Additionally, it meant to prohibit the sale of electronic cigarettes that have not been approved by the FDA or did not apply for FDA approval before September 2020.
But as the bill saw five major revisions in the closing week of the session, a reference to section (B)(ii) got switched to (ii)(b) and the result was that products that had applied for and were awaiting review by the FDA were also banned.
What difference did it make?
To date, the FDA has approved the sale of 23 e-cigarette products from three manufacturers — six of which would not be legal for sale in Utah because another provision of the law also prohibits products with more than 4% nicotine.
So as it is written, on Jan. 1, 2025, thousands upon thousands of e-cigarette products sold in gas stations and vape shops across the state would be outlawed, the Utah Department of Health and Human Services confirmed in response to questions from The Salt Lake Tribune.
There is, however, a way to fix the mistake.
The sponsor of the legislation, Sen. Jen Plumb, D-Salt Lake City, said legislative attorneys are allowed to correct typos without a special session when the intent of the Legislature is clear.
What is unclear, though, is how many vape products will be eligible for sale once the law takes effect. The state health department doesn’t know how many manufacturers had applications pending prior to 2020.
A spokeswoman for the FDA said that through the end of 2023, the agency had processed applications for 99% of the 26 million tobacco products — including things like cigars and cigarettes, in addition to e-cigarettes — that had been submitted.
So it is likely that even after the typo in the law is fixed, the range of e-cigarette products available for sale in Utah next year will be drastically reduced. That has owners of the state’s nearly 200 vape shops worried about their survival and threatening to sue the state.
The whole episode could also serve as an example of what Gov. Spencer Cox, who signed it into law last month, warned is what happens when legislators rush to pass so many bills.
“While I suppose there is nothing inherently wrong with more bills, I truly believe it makes it more difficult to focus on the quality of the legislation,” Cox wrote in a letter to legislative leaders last month. Lawmakers passed a record 591 bills in the most recent 45-day session.
