Updated 2 July 2016
Utah has some of the most challenging laws as it relates to consumer usage, sales and manufacturing of e-liquid. We have always been ahead of the curve in the introduction of new laws and regulations and staying on top of it all is a daunting task.
The information presented below is as accurate as possible and is subject to change based on local, county or state law modifications. This information presented should not be considered legal advice and you are advised to contact the city or county along with your business attorney for any official guidance on the laws. If you cannot or will not follow the laws as required by the state, it will force the legislators and health agencies to take punitive action on the entire industry which will have a negative impact on the over 60 legal businesses and over 25,000 consumers in the state.
Online Sales Prohibition
Due to the E-Cigarette Licensing Act of 2015, all online sales to Utah residents are prohibited as of July 1 2016. This applies to all retail operations regardless of location leaving Utah residents with local B&M stores as their only option to purchase.
E-Liquid Manufacturing and E-Liquid sales
The Utah e-cigarette industry retail sales and manufacturing regulations from the 2015 legislative bill HB0415 are now final. The regulations apply to all Utah retailers and EVERY e-liquid manufacturer who distributes refillable e-liquid products through Utah retail outlets. These regulations apply regardless of point of sale (C-Stores, Vape Shops, Smoke Shops, etc) and enforcement on them begin on July 1st 2016. The regulations apply specifically to all refillable e-liquid products sold in bottles.
We have put together an easy to follow guide on the regulations which we encourage anyone involved in the procurement of e-cigarette products to review and ensure your suppliers are compliant with. Any non-compliance after July 1 may result in fines, removal of product from store shelves or loss of tobacco/e-cigarette sales licenses.
County Regulations of Electronic Cigarettes and e-liquid manufacturing
A business license, county permit and a physical manufacturing facility is required for any e-liquid manufacturer in the state of Utah. The manufacturing of e-liquid as an individual in your home and reselling it to the public (including in Facebook groups) is illegal and punishable by fines including possible legal action by the county/state.
In 2015, a bill was passed that allowed county level regulations of e-liquid manufacturing in the same manner that the counties regulate the manufacturing of food, beverage and other consumable products. As part of this new law, it removed the authority from the health departments to retail sales but requires that the Utah Department of Health work with the county health departments and the public in the design of new regulations for labeling, packaging, nicotine content and product quality of refillable e-liquid products. This new regulation must be completed and introduced no later than 1 January 2016. While many of the counties already had rules introduced by their health departments by the time the legislative session began, each of the regulations will need revision due to the new state law. The exact language of the new state code relating to labeling, packaging, nicotine content and product quality can be found on the state code website: http://le.utah.gov/xcode/Title26/Chapter57/26-57-S103.html
Electronic Cigarette Retail Permit
Effective July 1 2015, all retailers of electronic cigarettes will be required to obtain a sales permit from the State of Utah. If you have already obtained a tobacco license, you will not be required to obtain a separate permit.
The permit will be valid for 3 years and cost $30 for a new permit, or $20 for the renewal. This allows the licensee to sell product only at a single physical licensed location which means after July 1 2015, retailers will not be allowed to set up at trade shows or events in the state of Utah.
Details of how to apply for this permit can be found at the below link. You will need to complete sections 1, 2, 12 & 14. You should not be required to provide a Surety Bond but if they ask for it, please contact the UTSFA board know before purchasing.
If you are a liquid manufacturer and are selling to the Utah public directly, you must follow the regulations to obtain a retail sales permit, obtain a county manufacturing permit and follow all applicable zoning regulations for manufacturing and/or retail sales. Failure to do so may result in fines and a Class B Misdemeanor which will prevent you from continuing to operate your operation. This also looks bad on the Utah vaping community and makes it very difficult for us to advocate for business rights when you are operating illegally.
The health departments also are empowered to undertake stings on underage sales. These stings are generally performed quarterly by underage teenagers under the direct supervision of the local police departments. The kids will be wearing “wires” so the police can record the conversations and transactions taking place.
If a retail outlet is caught selling to a minor or if a legal age adult provides an underage person with any electronic cigarette product (including zero nicotine e-liquid), the following penalties apply:
- Upon the first violation, a penalty of not more than $300;
- Upon a second violation at the same retail location, and within 12 months of the first violation, a penalty of not more than $750; and
- Upon a third or subsequent violation at the same retail location and within 12 months of the first violation, a penalty of not more than $1,000.
The enforcing agency shall notify the commission in writing of any order or order of default finding a violation of Subsection (1) which is a third or fourth violation. The commission, upon receipt of the written notification under Subsection (2), shall take action under Section 59-14-203.5 or 59-14-301.5 against the license to sell tobacco:
- By suspending the licensee’s license to sell tobacco at that location for not more than 30 days, upon receipt of notification of a third violation under Subsection (1)(c); and
- By revoking the license to sell tobacco at that location held by the licensee, including any license under suspension, upon receipt of notification of a fourth violation under Subsection (1)(c).
When the commission revokes a license under Subsection (3)(b), the commission
may not issue to the licensee, a license under Section 59-14-202, 59-14-301, or 59-14-803 to sell electronic cigarettes at the location for which the license was issued for one year after:
- The day on which the time for filing an appeal of the revocation ends; or
- If the revocation is appealed, the day on which the decision to uphold the revocation becomes final.
- This section does not prevent any bona fide purchaser of the business, who is not a sole proprietor, director, corporate officer, or partner or other holder of significant interest in the entity selling the business, from immediately applying for and obtaining a license to sell tobacco.
Utah’s specialty vapor retail outlets must follow the zoning that applies to Retail Tobacco Specialty Businesses. The following cities and counties are ones that we are aware of which ban Retail Tobacco Specialty Businesses (and vape shops): Tooele County, Summit County, city of Murray, city of Riverdale, city of Sandy, city of North Ogden, South Salt Lake City and St. George. This list will be updated as we verify others.
The exact zoning that applies to our retail outlets can be found on the State of Utah website under Utah Code Ann. § 17-50-3.333. Rather than to provide a copy of the code here, please visit the state website for the full details.
Utah Indoor Clean-Air Act (Rule R392-510)
Electronic cigarettes are treated the same way as normal cigarettes, and it is against the law to use electronic cigarettes inside places of public access, or within 25 feet of any entrance-way, exit, intake system, or open window.
Businesses with an e-cigarette or tobacco sales license and who generate 75% of their gross income from the sales of electronic cigarettes and e-liquid are allowed to take a sampling exemption in accordance with the Utah Indoor Clean Air Act, Utah Code Ann. § 26-38-2.6. Vapor specialty retailers who allow electronic cigarette product sampling in their store cannot permit a person under the age of 19 to enter the establishment. If your business license is a mixed-retail license, you are not allowed to vape indoors at all. If your license is a tobacco license and you sell both tobacco and vapor products where your e-cigarette sales are not at least 75% of your gross income, are not allowed to sample or demonstrate their products (vape indoors).
The prohibition against the use of an e-cigarette in a place of public access does not apply if the use of the e-cigarette occurs in the place of public access that is a retail establishment that sells e-cigarettes and the use is for the purpose of:
- The retailer of an e-cigarette demonstrating to the purchaser of the e-cigarette how to use the e-cigarette; or
- The customer sampling a product sold by the retailer for use in an e-cigarette; and the retailer of e-cigarettes:
- has all required licenses for the possession and sale of e-cigarettes in a place of business;
- does not permit a person under the age of 19 to enter any part of the premises of the retail establishment in which the e-cigarettes are sold; and
- the sale of e-cigarettes and substances for use in e-cigarettes constitutes at least 75% of the establishment’s gross sales.
- This section sunsets, in accordance with 63I-1-226, July 1, 2017.
Advertising of electronic cigarette products is allowed so long as the advertiser has all applicable permits and does not advertise the products as a “smoking cessation product”. We recommend speaking with the Board of Directors prior to launching any advertising campaign to ensure the language used is accurate and won’t result in issues down the road. You can find the specific language relating to advertising in the state code: http://le.utah.gov/xcode/Title26/Chapter57/26-57-S103.html