SALT LAKE CITY — A federal judge has upheld Utah's ban on the sale of flavored vape juices, but blocked state officials from making surprise inspections.
U.S. District Court Judge David Barlow made the ruling late Monday in response to a request for an injunction by the Utah Vapor Business Association, which is suing over the law passed last year that bans flavored vapes. The law also allowed for a "warrantless inspection program" that the vape shops coalition argues violates the Fourth Amendment right against illegal search and seizure.
"This nearly unlimited discretion likely violates the certainty and regularity requirements, particularly under the most recent binding decisions. Accordingly, Plaintiffs have demonstrated that they are substantially likely to succeed on their Fourth Amendment challenge to the Inspection Program," Judge Barlow wrote.
But the judge allowed the ban on flavored vape juices to go into effect.
"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. Additionally, the very existence of the Flavor Ban likely will decrease sales—indeed, Plaintiffs argued both that they have been highly compliant with prior restrictions and that the banned products constitute about '89 percent of Plaintiffs’ business,'" Judge Barlow wrote.
"For all of these reasons, it is clear that the Act is operable and will still further legislative purposes even without the Inspection Program. Accordingly, the Inspection Program is severable from the rest of the Act."
A representative for the Utah Vapor Business Association did not immediately respond to a text message seeking comment on the ruling. The Utah Attorney General's Office said the split ruling is positive.
"I am thrilled that Utah will now be able to better protect children from the harms of tobacco. 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," Utah Attorney General Derek Brown said in a statement.
Sen. Jen Plumb, D-Salt Lake City, who sponsored the original bill banning flavored vapes, was optimistic about the ruling.
"The goal will always be protecting kids and youth. In this case, the legislative process brought us partway there and then judicial review made it better. I believe in the legislative and judicial processes," she said in a statement to FOX 13 News. "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."
