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Judge allows state vaping law to move forward

June 2, 2016

A Marion County judge has ruled a state law regulating the manufacturers of vaping “e-liquids” can take effect July 1, shutting down an attempt to get a preliminary injunction on the law that they say will put them out of business.

Vaping advocates called Thursday’s decision by Marion County Superior Court Judge Cynthia Ayers “a dark day.”

“This would have been a saving grace that allowed us to stay in operation while the rest of the lawsuit was litigated,” said Hoosier Vapers Inc. chairman Evan McMahon. “Without that, we’re done.”

Ayers wrote in her decision that there was "no evidence" that the implementation of the law would adversely affect the public interest.

There are more than 200 vaping businesses in Indiana, McMahon said, many of which produce their own e-liquids, which are flavorful solutions heated in the process of vaping that change the substance into an aerosol that the user inhales.

But, under the new rules, just six e-liquid manufacturers so far have been approved by the state to move forward.

Indiana Attorney General Greg Zoeller released a written statement saying it “successfully defended” the 2015 state law, which regulated the mixing, bottling, packaging, distribution, sale, position and open use of certain e-liquids by requiring manufacturers to get a state permit from the Alcohol and Tobacco Commission.

Previously, many of these e-liquids, of which there are about 7,000 known flavors, were made by small mom-and-pop shops.

“The Legislature in its policymaking authority decided to regulate these drug delivery devices in this way for the public's health and safety,” Indiana Attorney General Greg Zoeller said in the statement.

But the most controversial part of the law is over the requirement that manufacturers contract with a security firm to regulate and inspect the facilities to prevent tampering. The plaintiffs complained these rules were "draconian and unattainable," according to the decision. 

"While the criteria for approval of licensure to run an e-liquid manufacturing operation may be arduous, plaintiffs have not demonstrated that the requirements are impossible to meet," according to the judge.

McMahon said his case will move forward, and that he is looking at different options, including appealing the injunction ruling.

The attorney general’s office said it would continue to defend the statute under an appeal.

The same law is also involved in a separate federal lawsuit, which is ongoing.

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