June 29, 2022

The AGO sent out the following press release this morning:

Yesterday, U.S. District Judge Howard Nielson, Jr. denied a request for a preliminary injunction that would have prevented a new law that prohibits vape shops within 1,000 feet of a “public or private kindergarten, elementary, middle, junior high, or high school” from taking effect as scheduled, July 1, 2022. The ruling means the new law will take effect.

Exotic Smoke & Vape and 10 other retailers licensed as Retail Tobacco Specialty Businesses challenged SB 189, “Tobacco Retailer Amendments,” originally passed by the Utah Legislature in 2021. The vape shops allege that the law constitutes a “regulatory taking, violated due process, the First Amendment, and the Supremacy Clause” as well as being unconstitutionally vague. They sought a temporary order to prohibit the enforcement of the law while their lawsuit was pending. In their motion, the vape shops argued that they would be irreparably harmed by the law and that they could prove that the law was a regulatory taking in violation of the Fifth Amendment.

Agreeing with one of the arguments advanced in the papers filed by the Assistant Utah Attorneys General opposing the injunction, Judge Nielson ruled that the vape shops were not entitled to an injunction because state law allowing payment for any taking of private property would provide the vape shops just compensation if shops need to be related or suffer harm to commercial interest. “Because Plaintiffs can obtain just compensation through these avenues if they establish that they have suffered a regulatory taking,” the court wrote, it had “no authority to issue a preliminary injunction.”

After many years of study, the Utah Legislature enacted SB 189, and predecessor bills, to address the rise in vape use among young people in Utah. The vape shop plaintiffs in the case admitted that the “bulk of” their sales come from flavored electronic cigarette products, which only Retail Tobacco Specialty Businesses may sell in Utah and which health officials have found to be particularly attractive to teens. SB 189 provided vape retailers nearly a year and a half to move their businesses to other suitable locations before its effective date.

Although the vape shops’ preliminary injunction motion was denied, the case is ongoing.

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