Nearly all vapes outlawed in Utah after judge lets ban take effect

As of Tuesday, almost all vapes are illegal in Utah, a move that vape shop owners say will drive them out of business.

A law passed last year banned popular flavored vape juices — like watermelon and bubblegum — as well as those with more than 4% nicotine content and any products that have not been approved by the U.S. Food and Drug Administration.

According to the official state registry, that means 72 products from six makers — including the popular Juul, Vuse and Njoy devices — are eligible to be sold in the state.

Vape shop owners challenged the law in court, arguing it would wipe out 89% of their business, and the state agreed not to enforce the law while that lawsuit was pending.

Monday evening, U.S. District Judge David Barlow ruled that the ban could take effect.

“We’ll go out of business,” said Beau Maxon with the Utah Vapor Business Association and owner of Park City Vapor.

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“We’re going to try to survive the best we can in hopes of coming back to the table for the ‘26 general session, but not being able to sell the product your business is built around, that’s a tall order,” he said. “So whether or not it’s even feasible to remain in business for the next eight, nine months, that remains to be seen.”

Tempest Elizondo, the manager of Vape Avenue & Smoke Shop in downtown Salt Lake City, expressed similar concerns. Flavored vape products take up about 50% of the shop’s current space, she said, and an even more significant amount of sales.

“This is how I pay my rent,” Elizondo said in an interview. “This is going to affect a lot of small businesses and a lot of family-owned businesses.”

Elizondo is supportive of some of the regulations lawmakers proposed as part of their attempts to resolve the lawsuit during the recent legislative session, but said she feels the full ban goes too far.

“I’ve always said that no matter what, people are going to find what they want,” Elizondo said of vapers, adding that the court’s decision will only drive smokers out of state to find their preferred flavors.

“Preventing kids from getting hooked”

Aiming to crack down on flavored vapes and oils, aside from tobacco and menthol flavors, state lawmakers passed SB61 last year, alleging the flavors are marketed to young people and lead to youth nicotine use.

The vape industry argued its customers are adults who would be denied their choice of products. The law, they contended, would only allow the sale of a handful of FDA-approved liquids that are marketed by the Big Tobacco companies and drive numerous vape shops out of business.

Youth vaping has actually fallen sharply in recent years, according to data from the Utah Department of Health and Human Services. In 2019, 12.4% of teens said they had used a vape product in the previous month. That number fell to 7.5% by 2023, the most recent data available.

But 75% of youth who have used nicotine products first tried a vape, according to the DHHS, and nearly 70% of those who reported vaping use sweet, flavored juices.

Barlow did block an enforcement provision in SB61, ruling that surprise inspections of vape shops, including examining business records, desks and vaults, went too far and likely violated the constitutional prohibition against warrantless searches and seizures.

“Plaintiffs have demonstrated that there is a substantial likelihood that the Inspection Program violates the Fourth Amendment,” Barlow wrote in his opinion issued Monday evening. “The harm that Plaintiffs will suffer if they are subjected to an unconstitutional search outweighs any interest Defendants have in making these searches.”

However, Barlow left the ban on flavored vapes in place and said the state has other means of enforcing the law.

“While injunction against the Inspection Program precludes warrantless searches, it does not prevent the State from using other enforcement means, including undercover operations and ex parte warrants,” Barlow wrote.

Attorney General Derek Brown said Barlow’s decision was a win for the state.

“I am thrilled that Utah will now be able to better protect children from the harms of tobacco,” he said in a statement Tuesday. “Our attorneys have worked tirelessly on this case to defend Utah’s law, and I am confident their advocacy moving forward will continue to be excellent. Their work is crucial in preventing kids from getting hooked on nicotine.”

“Businesses are left in the dark”

Maxon said the industry was consulting with its lawyers Tuesday and exploring options for an appeal. He said he’s asked county health department officials how they plan to enforce the ban and if shops will be able to sell the inventory they currently have in stock, but he has not received any guidance.

“Right now,” Maxon said, “businesses are left in the dark.”

A spokeswoman for Utah’s DHHS said the department “is still evaluating the full impact of the ruling on enforcement of flavor restrictions and nicotine percentages in vaping products.”

Sen. Jen Plumb, D-Salt Lake City, who sponsored the vape ban, said in this case the legislative and judicial process worked together to protect young people.

“Parents and policy makers need to guard this space and remain vigilant against perennial predators who want to financially benefit by putting children and their health in danger,” she said.

Barlow’s decision comes after a legislative session in which resolving the lawsuit became a hot topic, as two different paths for ending the suit emerged — one from the Senate, SB186, and one from the House, HB432.

The Senate bill, sponsored by Plumb, a physician, would have removed the inspection provision that Barlow held was unconstitutional. The House bill, sponsored by Rep. Matt MacPherson, R-West Valley City, would have undone the ban and implemented new regulations for vape sellers.

But neither bill passed both chambers before the session ended earlier this month.

MacPherson’s bill went down dramatically on the House floor after an unlikely coalition, including the conservative Eagle Forum and House Democrats, helped to kill the bill.

In an interview earlier this month, Plumb said of MacPherson’s attempt to undo the original ban, “I just hate to see good works have the wind taken out of their sails before they even get a chance to get going, and that’s a little bit what it feels like is happening over there.”

Plumb’s own bill came to the House floor in the final minutes of the legislative session, as legislators scrambled to pass the last bills of the year, but debate dragged on and the bill was amended, and ultimately the Legislature adjourned before giving it a final vote.

Note to readers, March 25, 4:30 p.m. • This story has been updated to include a statement and information from the Utah Department of Health and Human Services.