An attempt by vape shops to repeal a ban on flavored vapes hit a brick wall in the Utah House after the bill was hijacked by representatives wanting to keep the ban in place.
HB432, sponsored by Rep. Matt MacPherson, R-West Valley, would reverse a bill passed last year that banned flavored vapes except for tobacco and menthol flavors pre-approved by the state. The bill would also raise limits on nicotine concentrations from 4% to 5% by weight per container.
Gov. Spencer Cox signed the original ban passed into law last year, but it was halted in December after the Utah Vapor Business Association sued the state.
MacPherson said he wanted to strictly regulate the sale of vape products and resolve the lawsuit, which he said could cost the state $500 million if it continues. “Whether there’s a likelihood that [the association] would win that suit or not, I don’t know,” he said in an interview. “It’s not really a factor we’re considering. We’re just looking at the exposure piece to the state.”
But in a dramatic showdown Tuesday, MacPherson’s bill was taken over by vape opponents — Republicans with the backing of the Utah Eagle Forum and Democrats — to keep the ban in place.
Rep. Kristen Chevrier, R-Highland, proposed a substitute to MacPherson’s bill that she said left the ban in place and took out language that was the basis for the industry’s lawsuit.
MacPherson pushed back on Chevrier’s maneuver, saying it would completely undo the intent of his bill.
“I would not only call this an unfriendly substitute, I’d call it a hostile substitute,” he said.
Lifting the ban and providing enforcement mechanisms, MacPherson argues, would do more to keep flavored vapes out of the hands of young people than leaving a ban that is blocked by the courts in effect.
“I realize that this bill is offering a choice,” he said. “It’s offering a choice to everyone in this room on whether or not the policy of simply making a political statement that you want to end vaping in this state is better than actual policy that can actually accomplish that goal.”
Rep. Jennifer Dailey-Provost, D-Salt Lake City, said that the vape industry is “predatory” and has been targeting youth for a decade. The industry wants the fines in MacPherson’s bill, she said, because they know they will never be caught. It would be better, Dailey-Provost contended, to keep the ban in place.
After a voice vote was too close for House Speaker Mike Schultz, R-Hooper, to call, members voted 40-34 to adopt the substitute. MacPherson was not pleased.
“This bill doesn’t do anything of any good importance. I don’t like it at all,” MacPherson said of the substitute. “I don’t know what anyone was thinking in the drafting of it, but it sure isn’t what I expected.”
Dailey-Provost, D-Salt Lake City, moved to “circle” the bill — pausing the debate and moving on to another bill, preventing a floor vote on the substitute.
“The sponsor is not entirely enthusiastic about [his bill], and I think we’ve got a lot of good business to do,” she said.
Later Tuesday night, MacPherson uncircled the bill and made changes that undid Chevrier’s amendments, but the bill failed on the floor by a vote of 22-47.
Following the vote, its opponents celebrated the bill’s downfall.
“We’re just so grateful that children came first,” Utah Eagle Forum President Gayle Ruzika said in an interview after the floor vote. “Their choice was big vapes or the children of Utah, and they picked the children of Utah.”
But MacPherson said he believes last year’s ban didn’t do enough to regulate the industry and prevent youth vaping. In its substituted form, his bill would have, among other things, required that all retail tobacco specialty businesses scan IDs, institute surveillance cameras, prohibit anyone under the age of 21 from entering the stores, and limit flavored vapes in the state to either fruit, chocolate, herb or spice flavors.
“We’re really trying to eliminate the idea that they are being marketed towards children,” MacPherson said. “The state will have regulatory authority, and currently no vape on the market, none of the flavors at all, would currently meet that standard, so literally every vape on the market would become illegal until they can become in compliance with the state registry.”
He also said his goal is to allow “responsible adults” to choose flavored vapes should they so desire while still overseeing the industry effectively and supporting small businesses, but the attempt to undo the ban has attracted significant pushback.
The Eagle Forum made opposing MacPherson’s bill a central mission for this legislative session, and, in an interview last month, Ruzika shared several anecdotes about elementary and middle school-age students using the flavored products that she cited as the reason for her concern.
“[These vapes have] the same amount of nicotine as two packs of cigarettes, and so these kids, they carry them in their pocket to school,” Ruzika said. “My grandson talks about it in his junior high. He hates to go into the bathroom because the kids are all in there vaping. … Talk about destroying the lungs and the brain.”
HB432 is not the only legislative attempt to end the lawsuit.
Sen. Jen Plumb, D-Salt Lake, who sponsored the original ban, has introduced a bill, SB186, that removes provisions being challenged in the lawsuit. The bill strikes a provision that allows health departments to conduct inspections of vape shops’ financial records and physically inspect the premises, including safes and fixtures, in a search for products that are not pre-approved for sale by the state.
That bill has passed the Senate and is awaiting a vote in the House.
“I just hate to see good works have the wind taken out of their sails before they even get a chance to get going,” Plumb said of last year’s attempt to ban flavored vapes, “and that’s a little bit what it feels like is happening over there [with MacPhereson’s bill].”
“‘Hostile’ amendment is an interesting word for him to use when he [was] hostile against the bill we passed last year,” Senate Minority Luz Escamilla said in a news conference Tuesday. Led by Plumb, who is a physician, Escamilla said her caucus wants to make sure they “keep the good policy fix” while still resolving the lawsuit.
Republican Senate President Stuart Adams told reporters that he thought the original bill was well-constructed and added, “My personal opinion is that we ought to let the lawsuit run.”
Clarification: March 5, 2:45 p.m. • The story has been updated to clarify Plumb’s comment about the attempt to undo the ban on flavored vapes.
