Flavored Vaping Sales Ban

A man smokes an electronic cigarette in Chicago in this file photo from September 2018. U.S. health officials said teenage use of e-cigarette has reached “epidemic” levels in the U.S. and are calling on the industry to address the problem or risk having their flavored products pulled off the market.

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Bozeman vape shop owners are asking Gallatin County District Court to throw out recent rule changes that mean their customers have to go outside to use their products.

Ron and Deanna Marshall, owners of Freedom Vapes, filed the lawsuit Monday alleging the Gallatin City-County Board of Health stepped out of bounds when it approved including electronic nicotine devices into its Clean Indoor Air Act policy. The couple owns three shops, two of which are in Gallatin County.

The change meant people who vape or use electronic cigarettes in Gallatin County need to take it outside.

“The Marshall’s business model is structured so that customers can sample products in their shop to determine what flavor the customer wants to purchase,” according to the petition.

The petition asks the court to find the enforcement policy invalid. It argues the changes create a set of products Montana lawmakers left out of the state’s Clean Indoor Air Act.

The board approved the rule updates in October with a 7-2 vote. Gallatin County joined 10 other Montana counties that banned people from using vape products indoors.

Those who voted against the change said evidence of the dangers of second-hand vaping remains thin — a complaint echoed in the Marshalls’ petition.

Those who supported the change ran through the product’s potential harm and said it could act as a gateway to cigarettes — especially as kids continue to illegally pick up the habit. At the time, health department staff said the evidence of the products’ harm varies because of a lack of federal oversight.

The local case arrives as national attention turns toward the electronic devices.

The Associated Press reported this month that Food and Drug Administration officials pledged to tighten rules around selling most flavored versions of electronic cigarettes. The proposed restrictions were aimed mainly at reducing smoking in kids. Flavored e-cigarettes have been blamed for a recent increase in teen vaping rates.

The Marshalls allege the Gallatin County vote happened only after proponent groups “shored up” their argument to individual board of health members. The couple said that’s based on a Freedom of Information Act request they obtained from Gallatin County health officials.

Among other things, the Marshalls’ request included all Gallatin City-County Health Department communication regarding electronic cigarettes and/or vaping from Jan. 1 through Aug. 22 of this year.

Public Health Officer Matt Kelley wrote in an email Tuesday that he couldn’t comment on the current litigation. In a previous interview, Kelley said the Marshalls’ request was broad and went beyond crafting the policy update.

Breaking the rule is a misdemeanor with a fine anywhere between $25 and $100. Shop owners caught three times or more within three years face a fine between $100 and $500, depending on how many violations they have.

Kelley said as of Tuesday, no one had been fined under the change and his department hasn’t received any complaints about indoor vaping.

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Katheryn Houghton can be reached at khoughton@dailychronicle.com or at 582-2628. Follow her on Twitter @K_Hought.

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