DYER LAW GROUP PLLC

PHILLIP W. DYER (4315)

BENJAMIN R. DYER (13691)
Attorneys for Plaintiffs
The Langton House
648 East 100 South
Salt Lake City, Utah 84102
Phone: (801) 363-5000
Facsimile: (801) 363-5051
[email protected]
[email protected]

IN THE THIRD JUDICIAL DISTRICT COURT

IN AND FOR SALT LAKE COUNTY, STATE OF UTAH

VIP VAPORS OF OREM, LLC dba VIP

Vapors, a Utah Limited Liability Company,
ALTERNATIVES, EMPIRE COMPLAINT FOR TEMPORARY
MERCHANDISE COMPANY SLC, LLC, a RESTRAINING ORDER,
Utah Limited Liability Company, VAPOR PRELIMINARY/PERMANENT
UTAH LLC dba CURRENT VAPOR, a Utah INJUNCTION AND DECLARATORY
Limited Liability Company, VAPOR UTAH ORDER
LLC dba DRAPER VAPOR, a Utah Limited
Liability Company, GREATER SALT LAKE [TIER 2]
TOP STOP L.L.C., a Utah Limited Liability
Company, ASAL ENTERPRISES LLC dba
HOV2, a Utah Limited Liability Company,
V.O.S. Retail LLC, a Utah Limited Liability
Company,

Plaintiffs,
vs.

JOSEPH K. MINER, MD, executive director Case No. _____________

of the Utah Department of Health, and the Judge ________________
UTAH DEPARTMENT OF HEALTH,

Defendants.

Plaintiffs VIP Vapors of Orem, LLC dba VIP Vapors, Alternatives, Empire Merchandise

Company SLC, LLC, Current Vapor, Draper Vapor, Greater Salt Lake Top Stop LLC, ASAL
Enterprises LLC dba HOV2 and V.O.S. Retail LLC (collectively “Plaintiffs”) by and through

their undersigned counsel, hereby complains against Defendants Joseph K. Miner, MD and the

Utah Department of Health (collectively “Defendants”) and alleges as follows:

PARTIES

1. VIP Vapors of Orem, LLC dba VIP Vapors, is, and was at all times mentioned

herein, a Utah Limited Liability Company doing business in Utah County, State of Utah, and is a

licensed general tobacco retailer.

2. Alternatives, is, and was at all times mentioned herein, a sole proprietorship of

Sameera Iqbal doing business in Salt Lake County, State of Utah, and is a licensed general

tobacco retailer. Farhan Iqbal is an authorized agent/representative of Alternatives.

3. Empire Merchandise Company SLC, LLC, is, and was at all times mentioned

herein, a Utah Limited Liability Company doing business in Salt Lake County, State of Utah,

and is a licensed general tobacco retailer.

4. Vapor Utah LLC dba Current Vapor is, and was at all times mentioned herein, a

Utah Limited Liability Company doing business in Salt Lake County, State of Utah, and is a

licensed general tobacco retailer.

5. Vapor Utah LLC dba Draper Vapor, is, and was at all times mentioned herein, a

Utah Limited Liability Company doing business in Salt Lake County, State of Utah, and is a

licensed general tobacco retailer.

6. Greater Salt Lake Top Stop L.L.C., is, and was at all times mentioned herein, a

Utah Limited Liability Company doing business in Davis County, State of Utah, and is a licensed

general tobacco retailer.

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 7. ASAL Enterprises LLC dba HOV2 is, and was at all times mentioned herein, a

Utah Limited Liability Company doing business in Salt Lake County, State of Utah, and is a

licensed general tobacco retailer.

8. V.O.S. Retail LLC is, and was at all times mentioned herein, a Utah Limited

Liability Company doing business in Salt Lake County, State of Utah, and is a licensed general

tobacco retailer.

9. Defendant Joseph K. Miner, MD is, and was at all times mentioned herein, the

Executive Director of the Utah Department of Health and is sued in his official capacity.

10. Defendant Utah Department of Health is, and was at all times mentioned herein, a

Utah governmental entity with its Department Headquarters in Salt Lake County, State of Utah.

The Utah Department of Health is defined herein as “UDOH.”

JURISDICTION AND VENUE

11. Pursuant to U.C.A. §78A–5–102(1) & 7(a)(2010) and U.C.A. §78B–3–307(1)(a)

& (b)(2008), this Court has jurisdiction and venue over this civil dispute because some of the

Plaintiffs are located and do business in Salt Lake County, the causes of action arise in Salt Lake

County and the UDOH resides and conducts business in Salt Lake County.

12. Plaintiffs filed a Petition for: 1) Declaratory Order Suspending/Staying

Implementation, Enforcement and/or Application of Emergency Administrative Rule R384-418,

et seq.,; and, 2) For Amendment of Emergency Administrative Rule R384-418-1, et seq.

(“Plaintiffs’ Petition”) on October 17, 2019, but Defendants have sixty (60) days to review and

grant/deny Plaintiffs’ Petition such that immediate relief from the Court is necessary. Plaintiffs’

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Petition (with attachments) is attached hereto as Exhibit 1 and is incorporated herein by this

reference.

TIER ELECTION

13. Pursuant to Rule 26(c) of the Utah Rules of Civil Procedure and because Plaintiffs

are requesting non-monetary relief in the form of injunctive relief but do seek an award of

attorney’s fees, Plaintiffs elect Tier II discovery in this matter. Plaintiffs reserve the right to

amend their Tier Election upon amending this Complaint.

FACTS

A. UDOH’s Adoption of the Emergency Rule is in violation of the Utah Administrative

Rulemaking Act (“UARA”) and/or Electronic Cigarette Regulation Act (“ECRA”).

14. On or about October 1/2, 2019, UDOH adopted Utah Administrative Code R 384-

418-1, et seq. (the “Emergency Rule”). The Emergency Rule is attached as Exhibit A to

Plaintiffs’ Petition.

15. UDOH originally designated October 7, 2019, as the effective date of the

Emergency Rule but then delayed implementation of the Emergency Rule until October 21,

2019.

16. The Emergency Rule bans licensed general tobacco retailers (including Plaintiffs)

from selling flavored electronic cigarette products to adults that are currently 19 years of age or

older.

17. Flavored electronic cigarette products are lawful products in the State of Utah.

18. Flavored electronic cigarette products are not subject to statutory or

administrative regulation in the State of Utah under the ECRA.

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 a. UDOH has no scientific evidence that vaping flavored electronic cigarette

products is the cause of the recent illnesses that underpins the reason for the

Emergency Rule.

b. The ECRA does not provide UDOH with administrative rulemaking authority

regarding flavored electronic cigarette products.

c. The ECRA was enacted in 2015 and only authorized rulemaking by UDOH

concerning certain categories as follows:

i. Labeling
ii. Nicotine Content
iii. Packaging
iv. Product Quality

d. The Utah Legislature also forbade local health departments from adopting any

regulations that are not “identical to the standards established by the Department

[UDOH] under subsection 1 [of the ECRA]” See, U.C.A. §26-57-103(4)(a)

(2015).

e. UDOH has known about the marketing and sale of flavored electronic cigarette

products prior to the enactment of the ECRA and as long ago as 2011. See,

Exhibit 2.

19. The Emergency Rule mandates the posting of signage that reads as follows:

VAPING UNREGULATED THC IS DANGEROUS TO YOUR HEALTH

A lung diseases related to vaping unregulated
THC has recently hospitalized dozens of
Utahns and caused several deaths nationwide.
For more information, go to https://health.utah.gov/lung-disease-investigation.
See, Exhibit 3

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 20. The Emergency Rule does not facially have any explicit limitation restricting the

effective period of the Emergency Rule to 120 days.

21. UDOH published its Rule Analysis of the Emergency Rule in the October 15,

2019, Office of Administrative Rules (“OAR”) Bulletin as required by U.C.A. §63G-3-

304(2)(b). (“UDOH’s Rule Analysis”). See, Exhibit B to Plaintiffs’ Petition.

22. U.C.A. §63G-3-304(2)(b) requires UDOH to publish its rule analysis “in the

bulletin as provided in Subsection 63G-3-301(4).”

23. UDOH did not publish the Emergency Rule in the OAR Bulletin prior to its

effective date of October 1, 2019.

24. U.C.A. §63G-3-301(4)(c)(i) requires UDOH to provide “rule analysis and the text

of the proposed rule…” which includes a laundry list of required rule analysis under U.C.A.

§63G-3-301(8), to-wit:

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 (8) The rule analysis shall contain:
(a) a summary of the rule or change;
(b) the purpose of the rule or reason for the change;
(c) the statutory authority or federal requirement for the rule;
(d) the anticipated cost or savings to:
(i) the state budget;
(ii) local governments;
(iii) small businesses; and
(iv) persons other than small businesses, businesses, or local governmental
entities;
(e) the compliance cost for affected persons;
(f) how interested persons may review the full text of the rule;
(g) how interested persons may present their views on the rule;
(h) the time and place of any scheduled public hearing;
(i) the name and telephone number of an agency employee who may be
contacted about the rule;
(j) the name of the agency head or designee who authorized the rule;
(k) the date on which the rule may become effective following the public
comment period;
(l) the agency's analysis on the fiscal impact of the rule as required under
Subsection (5);
(m) any additional comments the department head may choose to submit
regarding the fiscal impact the rule may have on businesses; and
(n) if applicable, a summary of the agency's efforts to comply with the
requirements of Subsection (6). U.C.A. § 63G-3-301(8)
B. UDOH’s Investigation and Rule Analysis Links Lung Illnesses to Vaping
Tetrahydrocannabinol (“THC”), Not Flavored Electronic Cigarette Products.

25. On or about October 2, 2019, UDOH posted its “Vaping-related Lung Injury,

Utah, 2019: Investigation to Date - Updated September 30, 2019” on UDOH’s website in tandem

with the Emergency Rule (“UDOH Investigation Report”). See, Exhibit G to Plaintiffs’ Petition.

26. The word “flavor” does not appear anywhere in the UDOH Investigation Report.

27. The UDOH Investigation Report does not link the recent spate of lung illnesses to

flavored electronic cigarette products but, instead, links the lung illnesses to these persons’ use of

black market THC cartridges.

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 28. The word “flavor” does not appear anywhere in the “Purpose of the Rule or

Reason for the Change” or “Justification” sections of UDOH’s Rule Analysis.

29. The UDOH Investigation Report acknowledges that 94% of the people surveyed

reported vaping THC cartridges while only 6% (2 of the 36 people surveyed) reported only

smoking nicotine products1 and all of the nicotine products tested by UDOH contained no THC,

Vitamin E Acetate or Long-Chain Fatty Acids that are affiliated/associated with adulterated THC

cartridges, to-wit:

See, Exhibit C to Plaintiffs’ Petition.

1. Petitioners note that recreational THC use is illegal in the State of Utah. The fact that 94% of those surveyed self-
reported THC use is statistically significant and those surveyed who deny illicit THC use may not be truly reflective
of THC use for fear of criminal prosecution. That is to say the two (2) persons who claimed to have used only
nicotine products may not be candid due to fear of criminal prosecution.

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 30. UDOH’s Rule Analysis likewise fails to establish any causal/evidentiary

link/nexus between flavored electronic cigarette products and black market THC cartridges. On

the contrary, UDOH explicitly identified that it is the unregulated “black market” THC products

that have been linked to the recent spate of illnesses, to-wit:

[P]atients are using unregulated electronic-cigarette products to vape

THC obtained from the black market. Neither the national nor the Utah-
specific investigation has identified any specific electronic-cigarette
product, vaping product (devices, liquids, refill pods, and/or cartridges),
substance that is linked to all cases. See, Exhibit B to Plaintiffs’ Petition
at p. 2, highlighted for the Court’s reference. (Emphasis supplied).

31. The words “youth” and “minor” do not appear anywhere in the UDOH

Investigation Report. See, Exhibit C to Plaintiffs’ Petition.

32. The word “youth” appears only once in UDOH’s Rule Analysis, to-wit: “The

purpose of this rule is to protect the immediate health, safety, and welfare of Utah youth and

adults.” See, Exhibit B to Plaintiffs’ Petition. The word “minor” does not appear in UDOH’s

Rule Analysis. Id.

33. There are no findings or conclusions presented by UDOH, in either the UDOH

Investigation Report or UDOH’s Rule Analysis, that determine, find or establish any evidentiary

link/nexus between the recent spate of illnesses and Utah’s adults allegedly vaping only flavored

electronic cigarette products. In fact, the median age of the patients is 26 years of age.

34. There are no evidentiary findings or supported conclusions by UDOH, in either

the UDOH Investigation Report or UDOH’s Rule Analysis, that any “emergency” exists

regarding any alleged link between flavored electronic cigarette products and lung illnesses that

warranted the draconian implementation of an emergency administrative rule without proceeding

through the ordinary administrative rulemaking process or affording Plaintiffs any right(s) to due

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process before depriving them of their vested property interests in and to their license to sell

electronic cigarette products including flavored electronic cigarette products.

35. The Emergency Rule has not been vetted by the Utah Legislature’s

Administrative Rules Committee for oversight and determinations regarding whether the

Emergency Rule is consistent with Legislative intent as required by U.C.A. §63G-3-

501(3)(b)(2019).

36. Before the October 21, 2019, implementation date of the Emergency Rule, there

has been only one (1) death in Utah identified by UDOH related to the recent spate of lung

illnesses. See, Exhibit 4. Significantly, the UDOH Office of Medical Examiner “determined the

individual vaped THC prior to their death.” Id.

37. As a result of the foregoing death, Dr. Angela Dunn, UDOH’s state

epidemiologist, recommended that, “Based on what we know about this outbreak and what may

be contributing to it, our best advice to the public is to stop vaping products that contain THC.”

Id. (Emphasis supplied).

38. Dr. Dunn did not recommend the immediate prohibition on the sale of flavored

electronic cigarette products as part of her analysis. Id. 2

39. The Centers for Disease Control and Prevention states that 480,000 people in

America die from cigarette smoking each year while for “every person who dies because of

2. Plaintiffs note that this additional information in paragraphs 36-38 was not available to UDOH prior to the
issuance of the Emergency Rule. Nonetheless, the information and analysis of the more recent information further
demonstrates that UDOH has no causal/evidentiary link/nexus between flavored electronic cigarette products but
that the continuing evidence gathered by UDOH demonstrates a causal/evidentiary link/nexus between black market
THC cartridges and the lung illnesses but not the vaping of any flavored electronic cigarette products.

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smoking, at least 30 people live with a serious smoking related illness.” See, Exhibit F to

Plaintiffs’ Petition.

40. Recreational marijuana and products containing THC meant for recreational use

are illegal in Utah.

41. The UDOH Investigation Report was generated from surveys of those struck with

lung illnesses who self-reported use of THC and/or electronic cigarette products. The foregoing

surveys do not purport to reflect the use of legal electronic cigarette products including the use of

flavored electronic cigarette products.

42. Defendants cannot reasonably demonstrate that the three (3) persons surveyed

incident to the UDOH Investigation Report were truthful in denying vaping THC.

43. It is reasonable to conclude that those surveyed by the UDOH may not have

reported any use of THC for fear of criminal prosecution.

C. UDOH has been aware of issues with youth vaping since, at the latest, 2011 and there is
therefore no grounds to declare youth/adult vaping an “emergency.”

44. UDOH Released its Tobacco Prevention and Control In Utah Sixteenth Annual

Report in October of 2016 (“UDOH’s 2016 Tobacco Report”). See, Exhibit 2.

45. Defendant Miner signed the “Letter from the Executive Director” which was the

preface to UDOH’s 2016 Tobacco Report. Id. at p. 4.

46. Defendant Miner’s Letter from the Executive Director acknowledges that the rate

of Utah teens using e-cigarettes almost doubled between 2013 and 2015. Id.

47. UDOH’s 2016 Tobacco Report states that, “Since 2011, the use of e-cigarettes by

Utah youth has increased five-fold.” Id. at p. 14

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 48. UDOH’s 2016 Tobacco Report also summarizes UDOH’s rulemaking authority

under the ECRA as not inclusive of the right to regulate flavored electronic cigarette products,

to-wit: “To prevent accidental poisonings, Utah legislators authorized the UDOH to make a rule

to set standards for e-cigarette liquids in terms of labeling, nicotine content, packaging, and

product quality.” Id.

D. Plaintiffs were left out of the Rulemaking Process.

49. The effect of the Emergency Rule is that Plaintiffs will be deprived of their vested

property interests in and to their general tobacco retailer licenses.

50. The ECRA requires that any rulemaking by UDOH be subject to “input from the

public” in consultation with local health departments.

51. No public comment has been afforded to Plaintiffs as required by the ECRA

before adoption of the Emergency Rule.

52. Instead, UDOH has attempted to circumvent the Utah Legislature’s intent in the

ECRA by adopting the Emergency Rule under its general rulemaking authority without public

comment before implementation/adoption.

53. UDOH has not provided Plaintiffs with any formal notice, any hearing or

opportunity to be heard through an adjudicative proceeding before enforcement of the

Emergency Rule.

54. Plaintiffs’ due process rights have been unconstitutionally deprived and Plaintiffs

have attempted to protect their due process rights by filing Plaintiffs’ Petition with UDOH.

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E. Plaintiffs Petitioned UDOH for a Declaratory Order Requesting the Emergency Rule be
Stayed Pending Review.

55. Plaintiffs and Plaintiffs’ counsel met in person with representatives and legal

counsel for the Defendants on October 15, 2019, to discuss the legal issues regarding the

Emergency Rule.

56. On October 17, 2019, Plaintiffs filed a Petition for: 1) Declaratory Order

Suspending/Staying Implementation, Enforcement and/or Application of Emergency

Administrative Rule R384-418, et seq.,; and, 2) For Amendment of Emergency Administrative

Rule R384-418-1, et seq. (“Plaintiffs’ Petition”), requesting Defendants delay implementation/

enforcement/application of the Emergency Rule pending a determination by Defendant Miner

regarding whether Defendants complied with the UARA, ECRA and other applicable

statutes/rules when adopting the Emergency Rule. See, Exhibit 1.

57. Plaintiffs’ counsel sent a separate letter to Defendant Miner, via counsel for

Defendants, on October 17, 2019, requesting UDOH delay implementation/enforcement of the

Emergency Rule until October 23, 2019, so that UDOH could have sufficient time to review

Plaintiffs’ Petition. See, Exhibit 5.

58. Defendants declined, in writing, to delay implementation of the Emergency Rule

on October 18, 2019. See, Exhibit 6.

59. UDOH and Defendant Miner have sixty (60) days from October 17, 2019, in

which to review Plaintiffs’ Petition pursuant to U.C.A. §63G-3-601(5).

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F. Plaintiffs will suffer irreparable harm to their business reputation, good will, and imminent
closure as a result of the Emergency Rule.

60. Plaintiffs have made substantial capital investments in their businesses and a

substantial portion of their revenue from the sale of electronic cigarette products and, more

particularly, the sale of flavored electronic cigarette products. Enforcement/implementation of

the Emergency Rule bans the foregoing sales and it is likely Plaintiffs will be forced to close

their businesses if the Court does not immediately restrain and enjoin the enforcement of the

Emergency Rule.

61. Plaintiffs submit good cause exists for issuance of a restraining order and/or

injunctive relief because Plaintiffs will be irreparably harmed and Defendants will not be

prejudiced in their investigation or enforcement of applicable laws/rules because no person(s)’

lung illnesses has/have been shown by UDOH to have been caused by the use of flavored

electronic cigarette products.

62. Moreover, the public interest would be served by restricting and enjoining the

Emergency Rule because Plaintiffs will continue to employ personnel, collect sales taxes and

benefit from their lawful adult customers.

63. Specialty Tobacco Retailers Are Given a Competitive Advantage By The

Emergency Rule. Significantly, absent a temporary restraining order and injunctive relief,

licensed specialty tobacco retailers will become the sole benefactors of the Emergency Rule

because they are still permitted to sell flavored electronic cigarette products.

64. This arbitrary, capricious and disparate treatment of licensed general tobacco

retailers is fundamentally unfair, unjust and violates Plaintiffs’ due process rights.

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 FIRST CAUSE OF ACTION
(Declaratory Order)

Plaintiffs complain of Defendants and, for a First Cause of Action, allege as follows:

65. Plaintiffs reallege, and incorporate herein by this reference, paragraphs 1 through

64 as though each allegation were expressly set forth herein.

66. There is a justiciable controversy between Plaintiffs and Defendants regarding the

validity and enforceability of the Emergency Rule.

67. Plaintiffs and Defendants interests in the validity and/or enforceability of the

Emergency Rule are adverse.

68. Plaintiffs have legally protectable property interests in and to their general

tobacco retailers license and the right/ability to sell flavored electronic cigarette products under

their general tobacco retailer license.

69. UDOH has stated, both publically and in Defendant Miner’s October 18, 2019,

letter to Plaintiffs’ counsel, that the Emergency Rule is effective and enforceable as of October

21, 2019, such that the validity and/or enforceability of the Emergency Rule is ripe for judicial

determination.

70. Pursuant to U.C.A. §78B-6-401, et seq., Plaintiffs request entry of a declaratory

order by the Court adjudicating and declaring that the Emergency Rule is invalid and/or

unenforceable for the reasons set forth herein including, but not limited to, the following:

a. UDOH does not have the statutory authority to regulate the sale of flavored

electronic cigarette products and the Emergency Rule is therefore invalid and

unenforceable;

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 b. UDOH did not comply with the requirements of U.C.A. §63G-3-304 of the Utah

Administrative Rulemaking Act in adopting the Emergency Rule and the

Emergency Rule is therefore invalid and/or unenforceable; and/or,

c. UDOH has not presented any evidentiary/causal connection/nexus between the

use of flavored electronic cigarette products and the recent spate of lung illnesses

and the Emergency Rule is not premised upon a bona fide emergency.

d. The Emergency Rule provides no due process rights to Plaintiffs or others

similarly situated to obtain redress regarding the deprivation of their vested

property interests.

WHEREFORE, Plaintiffs pray for judgment against Defendants as hereinafter set forth.

SECOND CAUSE OF ACTION

(Temporary Restraining Order)

Plaintiffs complains of Defendants and, for a Second Cause of Action, alleges as follows:

71. Plaintiffs reallege, and incorporate by this reference, paragraphs 1 through 70

hereinabove as though each allegation were expressly set forth herein.

72. Plaintiffs will suffer immediate and irreparable harm, loss and/or damage unless

the Court enters a temporary restraining order preventing implementation and enforcement of the

Emergency Rule before Defendants or Defendants’ counsel can be heard in opposition and a

preliminary injunction issued.

73. A bond or other security should not be required because Defendants will not incur

or suffer costs, attorney’s fees or damages as a result of any wrongfully ordered temporary

restraining order or injunction.

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 74. Pursuant to Utah R. Civ. P. 65A, Plaintiffs hereby move the Court for entry of a

temporary restraining order enjoining the enforcement of the Emergency Rule.

75. Plaintiffs’ counsel certifies, by his signature hereinbelow, that Plaintiffs and

Plaintiffs’ attorneys have provided notice to Defendants (through designated counsel) of their

intent to seek a temporary restraining order, preliminary injunction, permanent injunction and

declaratory order in addition to the reasons supporting their request to stay/delay enactment,

implementation and enforcement of the Emergency Rule as set forth hereinabove.

76. Plaintiffs have attempted to exhaust their administrative remedies but doing so

would result in immediate and irreparable harm to Plaintiffs because UDOH has sixty (60) days

from October 17, 2019, in which to deny/grant Plaintiffs’ Petition and Plaintiffs, including the

potential closing of their businesses, if the Emergency Rule is permitted to be enforced.

77. The threatened injury to Plaintiffs outweighs whatever damage the proposed

injunction would cause to the UDOH because UDOH has not presented any evidentiary/causal

connection/nexus between the use of flavored electronic cigarette products and the recent spate

of lung illnesses. In fact, Plaintiffs submit that there is no damage to Defendants whatsoever by

the entry of a temporary restraining order.

78. Entry of a restraining order and/or injunction would not be adverse to the public

interest for, at a minimum, the following reasons:

a. According to the UDOH Investigation Report, Defendants have not linked the

recent spate of illnesses to flavor electronic cigarette products but, instead, to

black market THC products such that there exists no demonstrable nexus

between the conduct Defendants seek to ban via the Emergency Rule (i.e., the

17
 sale of flavored electronic cigarette products) and the purpose and/or justification

of the Emergency Rule (i.e., lung illnesses suffered from vaping illegal/black

market THC cartridges).

b. According to the UDOH’s 2016 Tobacco Report, UDOH has been aware of the

rise in vaping by Utah’s youth since at least 2011 and there was therefore no

basis to forego the full rulemaking process (including notice and an opportunity

for Plaintiffs to be heard) and, instead, enact the Emergency Rule without any

legislative oversight or public input as required by the UARA and/or the ECRA.

79. Plaintiffs have a substantial likelihood of prevailing on the merits of their request

for a declaratory order because UDOH has no statutory authority to enact the Emergency Rule

under the ECRA, UDOH failed to comply with the requirements of U.C.A. §63G-3-304 in

adopting the Emergency Rule and/or the UDOH has made no evidentiary/causal

connection/nexus between the spate of lung illnesses and flavored electronic cigarette products.

WHEREFORE, Plaintiffs pray for judgment against Defendants as hereinafter set forth.

THIRD CAUSE OF ACTION

(Preliminary/Permanent Injunction)

Plaintiffs complains of Defendants and, for a Third Cause of Action, alleges as follows:

80. Plaintiffs reallege, and incorporate herein by this reference, paragraphs 1 through

79 hereinabove as though each allegation were expressly set forth herein.

81. Plaintiffs will suffer irreparable harm unless the Court enters a

preliminary/permanent injunction enjoining enforcement of the Emergency Rule.

82. The threatened injury to Plaintiffs outweighs whatever damage the proposed

injunction would cause to the Defendants or the public because UDOH has not presented any

18
evidentiary/causal connection/nexus between the use of flavored electronic cigarette products

and the recent spate of lung illnesses. In fact, Plaintiffs submit that there is no damage to

Defendants whatsoever by the entry of a temporary restraining order.

83. Entry of an injunction would not be adverse to the public interest for the reasons

set forth herein including, but not limited to, the fact that Defendants have not made any

evidentiary/causal connection between the use of flavored electronic cigarette products and the

recent spate of lung illnesses.

84. Plaintiffs have a substantial likelihood of prevailing on the merits of their request

for a declaratory order because UDOH has no statutory authority to enact the Emergency Rule,

UDOH failed to comply with the requirements of U.C.A. §63G-3-304 in adopting the

Emergency Rule and/or the UDOH has made no evidentiary/causal connection/nexus between

the spate of lung illnesses and flavored electronic cigarette products.

85. Upon granting Plaintiffs’ the declaratory relief sought herein, the Court should

preliminarily/permanents enjoin the enforcement of the Emergency Rule.

WHEREFORE, Plaintiffs pray for judgment against Defendants as hereinafter set forth.

FOURTH CAUSE OF ACTION

(Attorney’s Fees)

Plaintiffs complain of Defendants and, for a Fourth Cause of Action, allege as follows:

86. Plaintiffs reallege, and incorporate herein by this reference, paragraphs 1 through

85 as though each allegation were expressly set forth herein.

87. Plaintiffs are entitled to an award of reasonable litigation expenses (including

court costs, administrative hearing costs, attorney’s fees, etc.) not in excess of $25,000 per

19
Plaintiff pursuant to U.C.A. §78B-8-505 inasmuch as the Emergency Rule was undertaken

without substantial justification for the reasons set forth hereinabove.

88. Plaintiffs are also entitled to recover their costs, expenses and attorney’s fees in an

amount the Court determines is equitable and just pursuant to U.C.A. §78B-6-411.

WHEREFORE, Plaintiffs pray for judgment against Defendants as hereinafter set forth.

RESERVATION OF CLAIMS

89. Due to the immediate irreparable harm to Plaintiffs, Plaintiffs have supplied the

Court with sufficient facts to warrant entry of a temporary restraining order and

preliminary/permanent injunction in this matter. However, Plaintiffs reserve the right to amend

this Complaint as facts and evidence are developed including, but not limited to, violations of

Plaintiffs’ due process rights under the United States/Utah Constitutions, improper takings in

violation of the United States/Utah Constitutions or any other claims/causes of action.

WHEREFORE, PLAINTIFFS prays for judgment against Defendants as hereinafter set

forth.

PRAYER FOR RELIEF

Plaintiffs pray for judgment/relief against Defendants as follows:

1. For entry of a temporary restraining order against Defendants and in favor of

Plaintiffs as requested hereinabove, to include an appropriate restraining order immediately

enjoining enforcement of the Emergency Rule which bans the sale of flavored electronic

cigarette products by Plaintiffs;

2. For preliminary/permanent injunctive relief against Defendants and in favor of

Plaintiffs as requested hereinabove, to include appropriate injunctive relief as may be necessary

to enjoin the enforcement of the Emergency Rule which bans the sale of flavored electronic

20
cigarette products by Plaintiffs and to enjoin Defendant;

3. For entry of a declaratory order declaring the Emergency Rule invalid and/or

unenforceable for the reasons set forth hereinabove and/or as may be uncovered in discovery;

4. For an award of reasonable attorney’s fees and costs incurred by Plaintiffs herein;

and/or

5. Such other and/or further relief as the Court deems just and/or proper.

DATED this 21st day of October, 2019.

Respectfully submitted,

DYER LAW GROUP PLLC

/s/ Phillip W. Dyer

Phillip W. Dyer, Esq.
Benjamin R. Dyer, Esq.
Attorneys for Plaintiffs

Plaintiffs’ address:
c/o Dyer Law Group PLLC
The Langton House
648 East 100 South
Salt Lake City, UT 84102

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EXHIBIT 1
 DYER LAW GROUP PLLC
PHILLIP W. DYER, ESQ. (4315)
BENJAMIN R. DYER, ESQ. (13691)
Attorneys for Petitioners
The Langton House
648 East 100 South
Salt Lake City, Utah 84102
(801) 363-5000
[email protected]
[email protected]

BEFORE THE UTAH DEPARTMENT OF HEALTH

IN THE MATTER OF THE ADOPTION PETITION FOR: 1) DECLARATORY

OF EMERGENCY ADMINISTRATIVE ORDER SUSPENDING/ STAYING
RULE R384-418-1, et seq. IMPLEMENTATION, ENFORCEMENT
AND/OR APPLICATION OF
EMERGENCY ADMINISTRATE RULE
R384-418-1, et seq.; AND, 2) FOR
AMENDMENT OF EMERGENCY
ADMINISTRATE RULE R384-418-1, et
seq.

To: Joseph Miner, MD, MSPH To: Utah Department of Health

Executive Director Cannon Health Building
Utah Department of Health 288 North 1460 West
PO Box 141000 Salt Lake City, UT 84116
Salt Lake City, UT 84114-1000

PETITION FOR DECLARATORY ORDER

Pursuant to U.C.A. §63G-3-601(2) and Utah Admin. Code R.380-1-1, et seq., Petitioners

Juan Bravo, Robert Knight, Farhan Iqbal, Brenan Gale, Numair Khan and Huaziafa Mohammad

(collectively “Petitioners”) hereby request the Utah Department of Health issue a declaratory

order suspending/staying implementation, enforcement and/or application of Utah

Administrative Code R 384-418-1, et seq. (the “Emergency Rule”), adopted by the Utah

Department of Health on or about October 2, 2019, and the enforcement of which was delayed
by the Utah Department of Health (“UDOH”) until October 21, 2019. A copy of the Emergency

Rule is attached hereto as Exhibit A. Alternatively, Petitioners request that the UDOH

revise/amend the Emergency Rule to provide that General Tobacco Retailers, such as the

companies operated by Petitioners, are not restricted from continuing to sell flavored electronic-

cigarette products and electronic-cigarette substances in so long as they do so in age-restricted

environments consistent with those contemplated by U.C.A. §76-10-105.1(4). At the outset,

Petitioners note that the Emergency Rule does not completely ban the sale of flavored electronic

cigarette products but limits the sale of those products to specialty tobacco retailers. Thus, it

cannot be disputed that flavored electronic cigarettes are a lawful product.

For the reasons set forth hereinbelow, it is unclear whether the Emergency Rule was

adopted pursuant to statutes administered by the UDOH or via rules promulgated by the UDOH

or any of its committees and because it is also unclear which division within the UDOH will

administer the Emergency Rule, Petitioners have filed this Petition with both Executive Director

Joseph Miner, MD, MSPH and the Utah Department of Health pursuant to Utah Admin. Rule R

380-1-2(1)(a-c).

SITUATION OR CIRCUMSTANCES GIVING RISE TO NEED FOR

DECLARATORY ORDER

UDOH’s adoption of the Emergency Rule directly and irreparably harms Petitioners’

business vis-à-vis a ban on Petitioners’ revenue from the sale of flavored electronic cigarette

products without any input from, or regard to, Petitioners’ businesses, capital investments,

associated lost revenue/profits, continued costs of doing business, etc. While enforcement of the

Emergency Rule was delayed by two (2) weeks, the planned implementation on October 21,

2019, will adversely and irreparably harm Petitioners. The Emergency Rule was adopted by the
2
UDOH in direct contravention of the requirements for adoption of emergency rules set forth by

the Utah Legislature in U.C.A. §63G-3-304(2)(a-d), was adopted outside of the scope of the

authority delegated by the Legislature to the UDOH by U.C.A. §26-55-103(1) and is neither

rationally or reasonably related to the stated goals of the Emergency Rule and violated

Petitioners’ constitutional rights.

REASON FOR APPLICABILITY REVIEW

Petitioners are seeking a declaratory order for, at a minimum, the following reasons,

which are more fully argued in the Argument section hereinbelow:

A. UDOH does not have the statutory authority to ban the sale of flavored electronic-
cigarette products and electronic-cigarette substances.

B. UDOH did not comply with the requirements of §63G-3-304 of the Utah
Administrative Rulemaking Act (“UARA”) in adopting the Emergency Rule and the
Emergency Rule is therefore invalid and unenforceable.1

C. Petitioners submit that an appropriate resolution would be to adopt (or amend) the
Emergency Rule to restrict the sale of flavored electronic cigarette products to age-
restricted locations and post signage notifying potential patrons of age-related
restrictions of the premises or amend the Emergency Rule in the same fashion. The
new or amended rule would apply to Petitioners as general tobacco retailers.

1. U.C.A. §63G-3-101, et seq.

3
 PERSONS DIRECTLY AFFECTED BY EMERGENCY RULE

Petitioners are owners/agents/representatives of the following businesses licensed as

general tobacco retailers by their respective local health departments in which the businesses

conduct business and are directly affected by the Emergency Rule:

1. Juan Bravo
Owner of VIP Vapors of Orem, LLC dba VIP Vapors, a general tobacco retailer
Orem City Health Department Permit No. 2016-30369
Utah State Tax Commission Cigarette/Tobacco Produce License No. 14430007-003-TOB-001

2. Farhan Iqbal
Co-Owner of Alternatives, a general tobacco retailer
Salt Lake County Health Department Permit No. 35-054576
Utah State Tax Commission Cigarette/Tobacco Produce License No. 11834037-003-TOB-001

3. Robert Knight
Co-Owner of Empire Merchandise Company SLC, LLC, a general tobacco retailer
Salt Lake County Health Department Permit No. 35-053133
Utah State Tax Commission Cigarette/Tobacco Produce License No. 14576197-002-TOB-001

4. Brenan Gale
Co-Owner of Current Vapor and Draper Vapor, general tobacco retailers
Draper Vapor - Salt Lake County Health Department Permit No. 35-054684
Draper Vapor - Utah State Tax Commission Cigarette/Tobacco Produce License No. 14775188-
004-TOB-001
Current Vapor - Salt Lake County Health Department Permit No. 35-055887
Current Vapor - Utah State Tax Commission Cigarette/Tobacco Produce License No. 14775188-
004-TOB-0002

5. Numair Khan
Owner of Greater Salt Lake Top Stop LLC
Davis County Health Department Permit No. TRP1000050
Utah State Tax Commission Cigarette/Tobacco Produce License No. 14628380-002-TOB-002

6. Huaziafa Mohammad
Agent/Representative of ASAL Enterprises LLC dba HOV2
Salt Lake County Health Department Permit No. 35-054122
Utah State Tax Commission Cigarette/Tobacco Produce License No. 14535081-003-STC

7. Bilal Ahmad
Co-Owner of V.O.S. Retail L.L.C.
Salt Lake County Health Department Permit No. 35-056501
Utah State Tax Commission Cigarette/Tobacco Produce License No. 14954138-003-TOB-0001

4
 ADDRESS AND TELEPHONE NUMBER FOR REACHING PETITIONERS

Petitioners can be reached during regular work days via their attorneys, Phillip W. Dyer,

Esq. and/or Benjamin R. Dyer, Esq., at the following address/phone number:

Dyer Law Group PLLC

648 East 100 South
Salt Lake City, UT 84102
(801) 363-5000

5
 ARGUMENT
The Legislature has not passed any legislation making it illegal to sell
flavored electronic cigarette products or otherwise authorized the regulation
of those products by administrative rule.

In the face of a spate of illnesses that UDOH acknowledges is most likely the result of

black market THC cartridges, UDOH has now rushed to judgment by declaring a non-existing

emergency2 and using that emergency to ban general tobacco retailers from selling flavored

electronic cigarette products – products which UDOH itself acknowledges it cannot link to the

vast majority of illnesses. In doing so, UDOH exceeded the authority delegated to it by the Utah

Legislature by enacting the Emergency Rule without the statutory authority to regulate the sale

of flavored electronic cigarette products. Inasmuch as UDOH has no enforcement authority,

UDOH has sidestepped the legislative process and essentially enacted legislation itself by

banning the sale of a product that the Utah Legislature has authorized general tobacco retailers to

sell in Utah. Accordingly, Petitioners request that UDOH stay/suspend enforcement of the

Emergency Rule until UDOH has addressed and either granted or denied this Petition and permit

fourteen (14) days after UDOH’s decision to allow Petitioners to seek relief in District Court in

the event UDOH denies this Petition or does not adopt/interpret the Emergency Rule to permit

2. The Centers for Disease Control and Prevention states that 480,000 people in America die from cigarette smoking
each year while for “every person who dies because of smoking, at least 30 people live with a serious smoking-
related illness.” See, Exhibit F. While Petitioners recognize the importance of getting to the bottom of the illnesses
being caused, ostensibly, by black market THC products, they respectfully submit adoption of the Emergency Rule
is taking a hatchet to the entire industry when a more surgical approach could address UDOH’s concerns for Utah’s
youth.

6
general tobacco retailers to sell flavored electronic cigarette products in an age restricted

environment.3

A. UDOH does not have the statutory authority to enact the Emergency Rule.

The Utah Court of Appeals has recognized the “longstanding principle

of administrative law that an agency's rules must be consistent with its governing statute.”

Draughon v. Dep't of Fin. Institutions, State of Utah, 1999 UT App 42, ¶5, 975 P.2d 935, 937.

In Draughon, the Utah Court of Appeals held that an “administrative agency's authority to

promulgate regulations is limited to those regulations which are consonant with the statutory

framework, and neither contrary to the statute nor beyond its scope.” Id. The Court in

Draughon further held that, when an administrative agency issues “a regulation beyond the scope

of a statute, it is in excess of administrative authority granted” because agencies “may not

‘abridge, enlarge, extend or modify [a] statute...’” Id. Accordingly, the Court in Draughon

invalidated an administrative rule that distinguished between a “demotion” and “involuntary

reassignment” where no such distinction existed within the governing statute. Id. at ¶11.

Petitioners submit that, as in Draughon, UDOH’s enactment of the Emergency Rule exceeds the

scope of UDOH’s statutory authority to promulgate rules and is therefore invalid.

3. If the UDOH denies this Petition for Declaratory Order or does not agree to stay enforcement of the Emergency
Order pending a ruling by the UDOH on this Petition, Petitioners will be left with no alternative but to pursue
injunctive relief in District Court forthwith. The Courts in Michigan and New York have enjoined similar
administrative actions. See, Exhibit D.
7
 i. UDOH does not have the statutory authority to ban the sale of flavored electronic-
cigarette products and electronic-cigarette substances.

Petitioners respectfully submit that the UDOH does not have the statutory authority to

enact the Emergency Rule inasmuch as executive agencies can only enact rules within the scope

of the authority conferred on the agency by the Legislature, to-wit:

(2) In addition to other rulemaking required by law, each agency shall

make rules when agency action:
(a) authorizes, requires, or prohibits an action;
(b) provides or prohibits a material benefit;
(c) applies to a class of persons or another agency; and
(d) is explicitly or implicitly authorized by statute.
U.C.A. §63G-3-201(2) (2018).

The Utah Legislature passed the Electronic Cigarette Regulation Act (“ECRA”) in 2015

and explicitly defined/limited the authority of UDOH to promulgate rules regarding e-cigarettes

to four (4) categories, none of which includes flavors or flavored products, to-wit:

(1) The department shall, in consultation with a local health department, as

defined in Section 26A-1-102, and with input from members of the public,
establish, no later than January 1, 2016, by rule made in accordance with
Title 63G, Chapter 3, Utah Administrative Rulemaking Act, standards for
electronic cigarette substance:
(a) labeling;
(b) nicotine content;
(c) packaging; and
(d) product quality.
U.C.A. §26-57-103(1) (Underlining supplied).

As is clear from the text of the ECRA, UDOH only has the authority to promulgate rules

regulating the “standards for electronic cigarette substance” and, more specifically, only the

labeling, nicotine content, packaging and product quality of electronic cigarettes. Petitioners

submit that the UDOH exceeded its statutory authority by promulgating the Emergency Rule,

which does not regulate the standards for electronic cigarettes but is, instead, a wholesale ban on

8
the sale of flavored electronic cigarette products by general license tobacco retailers. UDOH’s

overreach is especially clear when taking into consideration that the Emergency Rule

differentiates between the sale of flavored electronic cigarette products by specialty tobacco

retailers and general tobacco retailers, while no such differentiation for restricting the sale of

specific products is made in the ECRA. In fact, the Legislature has not provided UDOH any

administrative rulemaking authority, whatsoever, to make administrative rule distinctions

between general and specialty tobacco retailers as to the content of the products they sell to the

public.

UDOH cited to U.C.A. §26-1-30(4) as its authority to enact the Emergency Rule, which

states that UDOH shall “establish, maintain, and enforce rules necessary or desirable to carry out

the provisions and purposes of this title to promote and protect the public health or to prevent

disease and illness.” The citation to U.C.A. §26-1-30(4) does not, however, empower UDOH to

issue the Emergency Rule for several reasons. First, nothing in U.C.A. §26-1-30(4) permits

UDOH to enact the Emergency Rule without complying with the Administrative Rulemaking

Act and UDOH cannot therefore rely on their general rulemaking authority to sidestep the

emergency rulemaking requirements. Second, the Utah Court of Appeals has held that

administrative “[a]gency regulations may not “abridge, enlarge, extend or modify [a] statute....”

Draughon at ¶5. Petitioners respectfully submit that the Emergency Rule impermissibly

enlarges, extends and modifies the ECRA by banning the sale of flavored products – which are

legal products – by general tobacco retailers while permitting specialty tobacco retailers to

continue to sell them. There is no statutory support for the Emergency Rules’ differentiation of

products that can be sold by general and specialty tobacco retailers and UDOH cannot rely on its

9
general rulemaking authority to essentially rewrite the ECRA.4 Third, the authority to delineate

between general and specialty tobacco retailers is not vested in the UDOH, but with the Utah

State Tax Commission (pursuant to U.C.A. §59-14-803(5)) or local health departments (pursuant

to U.C.A. §26-62-101, et seq.). Accordingly, Petitioners respectfully submit UDOH has

exceeded its authority by enacting the Emergency Rule.

ii. UDOH does not have the authority to make a first time violation of the Emergency
Rule a Class B Misdemeanor.

The Emergency Rule also exceeds UDOH’s authority by making violations of the

Emergency Rule punishable as a class B misdemeanor. Specifically, the Emergency Rule states

that, “The Department may enforce and seek penalties for the violation of the standards for

electronic cigarettes set forth in this rule as prescribed in Sections 26-23-1 through 26-23-10.”

U.C.A. §26-23-6(1)(a) provides:

Any person, association, or corporation, or the officers of any of them,

who violates any provision of this chapter or lawful orders of the
department or a local health department in a criminal proceeding is guilty
of a class B misdemeanor for the first violation…

However, UDOH does not have the authority to unilaterally make violation of the

Emergency Rule a class B misdemeanor because there is no statute that makes it a criminal

offense to sell flavored electronic cigarette products. The Utah Administrative Rulemaking Act

specifically forbids rules from imposing such criminal penalties, to-wit:

(5)(a) A rule shall enumerate any penalty authorized by statute that may
result from its violation, subject to Subsections (5)(b) and (c).

4. When interpreting two (2) statutes that touch on the same subject, the Court will generally look to the specific
statute over the general statute in determining legislative intent. See, Jensen v. IHC Hosps., Inc., 944 P.2d 327 (Utah
1997); Taghipour v. Jerez, 2002 UT 74, 52 P.3d 1252. In this circumstance, the Legislature has granted specific and
limited categories upon which rulemaking authority can be done under the ECRA.
10
 (b) A violation of a rule may not be subject to the criminal penalty of a
class C misdemeanor or greater offense, except as provided under
Subsection (5)(c).
(c) A violation of a rule may be subject to a class C misdemeanor or
greater criminal penalty under Subsection (5)(a) when:
(i) authorized by a specific state statute;
U.C.A. § 63G-3-201(5)(a) (2009). (Emphasis supplied).

Inasmuch as there exists no statute that makes it illegal to sell flavored electronic

cigarette products, UDOH exceeded its rulemaking authority by making a violation of the

Emergency Rule a class B misdemeanor.

Moreover, UDOH improperly abridged the Utah Criminal Code inasmuch as Utah

permits the sale of electronic cigarettes in age-restricted areas, to-wit:

3) The face-to-face sale requirement in Subsection (2) does not apply to:
(a) a mail-order, telephone, or Internet sale made in compliance with
Section 59-14-509;
(b) a sale from a vending machine or self-service display that is located
in an area of a retailer's facility:
(i) that is distinct and separate from the rest of the facility; and
(ii) where the retailer only allows an individual who complies with
Subsection (4) to be present; or
(c) a sale at a tobacco specialty shop.
(4) An individual who is less than 19 years old may not enter or be present
at a tobacco specialty shop unless the individual is:
(a) accompanied by a parent or legal guardian;
(b) present at the tobacco shop for a bona fide commercial purpose
other than to purchase a cigarette, tobacco, or an electronic cigarette;…
U.C.A. §76-10-105.1 (Emphasis supplied).

As is clear from U.C.A. §76-10-105.1, the Utah Legislature has proscribed instances in

which a retailer can sale electronic cigarette products in a distinct and separate part of their

facility if they restrict access to their location to those presently 19 years or older or are

accompanied by their legal parent or guardian or an active duty military service member.

11
Accordingly, the Emergency Rule’s criminal penalties are in direct contradiction with Utah’s

criminal statutes and the Emergency Rule is therefore an invalid abridgement of Utah law.

B. UDOH did not comply with the requirements of §63G-3-304 of the Utah Administrative
Rulemaking Act in adopting the Emergency Rule and the Emergency Rule is therefore
invalid and unenforceable.

The Supreme Court of Utah has held that “the rules of an administrative agency are not

valid unless the agency complies with the rule-making procedures prescribed in the Rule Making

Act.” Lane v. Bd. of Review of Indus. Comm'n of Utah, 727 P.2d 206, 208 (Utah 1986) Although

the Emergency Rule does not, on its face, identify itself as having been adopted pursuant to

U.C.A. §63G-3-304, UDOH’s October 2, 2019, the Rule Analysis and UDOH’s press release

make it clear that UDOH is proceeding on an emergency rule basis.5 Accordingly, Petitioners

are analyzing the adoption of the Emergency Rule under the requirements of U.C.A. §63G-3-

304, but note that the stricter requirements for the adoption of general administrative rules

pursuant to U.C.A. §63G-3-301 would likewise invalidate the Emergency Rule. U.C.A. §63G-3-

304(1) mandates UDOH’s compliance with the following procedures when adopting the

Emergency Rule:

(2)(a) When finding that its rule is excepted from regular rulemaking
procedures by this section, the agency shall file with the office:
(i) the text of the rule; and
(ii) a rule analysis that includes the specific reasons and justifications for its
findings.
(b) The office shall publish the rule in the bulletin as provided in
Subsection 63G-3-301(4).
(c) The agency shall notify interested persons as provided in Subsection
63G-3-301(10).
(d) The rule becomes effective for a period not exceeding 120 days on the
date of filing or any later date designated in the rule.

5. See, Exhibits B & G.

12
 U.C.A. §63G-3-304(2)(a-d).

UDOH published its Rule Analysis in the October 15, 2019, Office of Administrative

Rules (“OAR”) Bulletin as required by U.C.A. §63G-3-304(2)(b), which requires UDOH to

publish its rule analysis “in the bulletin as provided in Subsection 63G-3-301(4).” (“UDOH’s

Rule Analysis”). See, Exhibit B. U.C.A. §63G-3-301(4)(c)(i) requires UDOH to provide “rule

analysis and the text of the proposed rule…” which includes a laundry list of required rule

analysis.6 Petitioners submit that UDOH has failed to comply with the requirements that:

i) UDOH provide adequate justification and analysis of Emergency Rule (including specific

reasons and justifications for UDOH’s findings related to the sale of flavors); and, ii) that the

Emergency Rule’s effective period not exceed 120 days.

6. (8) The rule analysis shall contain:

(a) a summary of the rule or change;
(b) the purpose of the rule or reason for the change;
(c) the statutory authority or federal requirement for the rule;
(d) the anticipated cost or savings to:
(i) the state budget;
(ii) local governments;
(iii) small businesses; and
(iv) persons other than small businesses, businesses, or local governmental entities;
(e) the compliance cost for affected persons;
(f) how interested persons may review the full text of the rule;
(g) how interested persons may present their views on the rule;
(h) the time and place of any scheduled public hearing;
(i) the name and telephone number of an agency employee who may be contacted about the rule;
(j) the name of the agency head or designee who authorized the rule;
(k) the date on which the rule may become effective following the public comment period;
(l) the agency's analysis on the fiscal impact of the rule as required under Subsection (5);
(m) any additional comments the department head may choose to submit regarding the fiscal impact the rule
may have on businesses; and
(n) if applicable, a summary of the agency's efforts to comply with the requirements of Subsection (6).
U.C.A. § 63G-3-301(8)

13
 i. UDOH adopted the Emergency Rule without providing sufficient, relevant specific
reasons, findings or justifications for the enactment of the Emergency Rule.

UDOH posted its “Vaping-related Lung Injury, Utah, 2019: Investigation to Date -

Updated September 30, 2019” on UDOH’s website in tandem with the Emergency Rule

(“UDOH Investigation Report”). See, Exhibit C. UDOH filed the Emergency Rule and UDOH’s

rule analysis with OAR on October 1, 2019, which appeared in OAR’s Bulletin on October 15,

2019. However, neither the UDOH Investigation Report nor UDOH’s Rule Analysis contain

sufficient reasons, justifications or findings that justify the stated purpose of the Emergency

Rule:

R.384-418-1(2) The purpose of this rule is to protect health, safety and

welfare of the Utah youth, by requiring mandatory warning signs that
warn consumers not to use electronic-cigarette products to consume
unregulated tetrahydrocannabinol(THC) substances and by restricting the
sale of flavored electronic-cigarette products and electronic-cigarette
substances in retail tobacco specialty businesses. (Underlining supplied).

The word “flavor,” does not appear anywhere in the UDOH Investigation Report or in the

“Purpose of the Rule or Reason for the Change” or “Justification” sections of UDOH’s Rule

Analysis. The words “youth” and “minor” do not appear anywhere in the UDOH Investigation

Report and appear only once in UDOH’s Rule Analysis, to-wit: “The purpose of this rule is to

protect the immediate health, safety, and welfare of Utah youth and adults.” There are no

findings or conclusions by UDOH, in either the UDOH Investigation Report or UDOH’s Rule

Analysis, that the cause of the recent spate of illnesses is related to Utah’s youth vaping only

flavored electronic cigarette products. Nor that an “emergency” exists that warrants the

draconian implementation of an administrative rule without proceeding through the ordinary

administrative rulemaking process. Importantly, the Emergency Rule has not been vetted by the

14
Legislature’s Administrative Rules Committee for impact regarding whether the Emergency

Rule is consistent with Legislative intent as required by U.C.A. §63G-3-501(3)(b)(2019).7 See

also, Utah Administrative Rulemaking Process: Overview published by the Utah Division of

Administrative Rules on its website.

On the contrary, the first page of the UDOH Investigation Report specifically states that

“vaping THC cartridges or ‘carts’ is likely the driver of this outbreak of severe lung injury. The

UDOH recommends people do not vape THC cartridges until we learn more.” See, Exhibit C at

p.1. The “Laboratory Investigation” section of the UDOH Investigation Report specifically states

that while “[a]lmost all THC cartridges tested contained vitamin E acetate (17/19, 89%), a

known cutting agent…no nicotine products tested showed any unexpected compounds.” Id. at p.

4. (Emphasis supplied).

In fact, the UDOH Investigation Report states that 94% of the people surveyed reported

vaping THC cartridges while only 6% (2 of the 36 people surveyed) reported only smoking

nicotine products8 and all of the nicotine products tested contained no THC, Vitamin E Acetate

or Long-Chain Fatty Acids that are affiliated/associated with adulterated THC cartridges, to-wit:

7. (3)(a) The committee shall exercise continuous oversight of the rulemaking process.
(b) The committee shall examine each rule submitted by an agency to determine:
(i) whether the rule is authorized by statute;
(ii) whether the rule complies with legislative intent;
(iii) the rule's impact on the economy and the government operations of the state and local political
subdivisions;
(iv) the rule's impact on affected persons;
(v) the rule's total cost to entities regulated by the state;
(vi) the rule's benefit to the citizens of the state; and
(vii) whether adoption of the rule requires legislative review or approval.
U.C.A. §63G-3-501(2) & (3)(b)(i-vii) (2019) (Emphasis supplied).

8. Petitioners note that recreational THC use is illegal in the State of Utah. The fact that 94% of those surveyed self-
reported THC use is statistically significant and those surveyed who deny illicit THC use may not be truly reflective
of THC use for fear of criminal prosecution. That is to say the two (2) persons who claimed to have used only
nicotine products may not be candid due to fear of criminal prosecution.
15
 UDOH’s Rule Analysis likewise fails to make any causal link between flavors and black

market THC cartridges. On the contrary, UDOH explicitly identified that it is unregulated

products that have been linked to the recent spate of illnesses, to-wit:

[P]atients are using unregulated electronic-cigarette products to vape

THC obtained from the black market. Neither the national nor the Utah-
specific investigation has identified any specific electronic-cigarette
product, vaping product (devices, liquids, refill pods, and/or cartridges),
substance that is linked to all cases. See, Exhibit B at p. 2, highlighted for
your reference. (Emphasis supplied).

Despite UDOH’s clear statement that the likely cause of the recent spate of illnesses is

adulterated THC cartridges, and UDOH’s acknowledgment of the lack of evidence linking

vaping to illnesses, the Emergency Rule broadly bans Petitioners, as general retail tobacco

license holders, from selling any flavored products to adults based on the claimed purpose of

16
protecting the “health, safety and welfare of the Utah youth...” In fact, UDOH has provided no

analysis or correlation with vaping flavors and the illnesses, whatsoever. Moreover, the Food

and Drug Administration has explicitly stated that it has “also found most of the patients

impacted by these illnesses reported using THC-containing products, suggesting THC vaping

products play a role in the outbreak.” See, Exhibit E.

Petitioners submit that not only has UDOH provided no evidence to support such

draconian restrictions, but that such restrictions are contrary to the findings of UDOH’s own

investigation. Accordingly, Petitioners respectfully submit that the Emergency Rule is not

supported by any of the necessary findings that constitute an “emergency” justifying banning

Petitioners from selling flavored vaping products in stores licensed as general tobacco retailers

and a declaratory order should be entered suspending the implementation/enforcement of the

Emergency Rule as to Petitioners and grant the further relief requested by Petitioners

hereinbelow.

ii. UDOH has failed to adequately consider the costs to Petitioners.

One of the requirements under U.C.A. §63G-3-304(8) specifically applicable to

Petitioners, who have been wholly excluded from the rulemaking process for the Emergency

Rule prior to its adoption, is “the anticipated cost or savings to…small businesses” which are

defined as less than 50 employees. Petitioners submit that UDOH’s contention that Petitioners

“do not primarily rely on electronic cigarette products to maintain their business operations” is

unfounded when considering how businesses function in the real world. See, UDOH Rule

Analysis at p. 2.

17
 Petitioners have already experienced losses of revenue from the UDOH and/or the State

of Utah’s press releases, and media coverage of such press releases. Now, Petitioners would see

a substantial (up to 34%) reduction of their revenue – enough to potentially cause the closing of

some of the businesses if the Emergency Rule is enforced. What UDOH failed to consider is not

only that Petitioners would lose potentially one third (1/3) of their total revenue, but that

customers often purchase other, non-electronic tobacco products while shopping in Petitioner’s

stores. The loss of the ability to sell flavors does not simply reduce Petitioners’ revenue from

flavored products, but also significantly reduces foot traffic to Petitioners’ stores which further

decreases revenue on other products offered by Petitioners.

Moreover, specialty tobacco retailers are now at a competitive advantage because they

can sell both non-flavored and flavored electronic cigarette products. The obvious question is –

why would a person go to general tobacco retail location with a limited selection when they

could instead go to a specialty tobacco retailer and be privy to a full host of both flavored and

non-flavored options. Moreover, UDOH’s suggestion that a business could suffer the loss of

potentially one third of their revenue, continue to maintain their overhead costs (taxes, insurance,

capital investments and expenditures, employee salaries, rent, utilities, debt interest, etc.) and

still run a profitable (or break-even) business strains reasonableness. Simply put, there are

virtually no businesses that run a 35% profit margin and can simply afford to remain working

while losing one third (1/3) of their business revenue.

The harm caused by rules such as the Emergency Rule was recognized by the State of

Michigan Court of Claims, which explicit found that Michigan’s flavor ban had caused one of

the plaintiffs to shutter “one retail center and is in the process of closing four others.” See,

18
Opinion and Order in re: Slis and 906 Vapor v. State of Michigan and Department of Health and

Human Services, attached hereto as Exhibit D. The Court in Slis v. Michigan explicitly found

that “an entity’s loss of its competitive position in the marketplace may constitute irreparable

harm as well.” Id.

Accordingly, Petitioners respectfully submit that the implementation of the Emergency

Rule should be stayed/suspended until UDOH complies with the requirements of U.C.A. §63G-

3-304(8) and considers the significant costs associated with the implementation and enforcement

of the Emergency Rule.

iii. The Emergency Rule has no explicit limitation on its effective period in violation of
U.C.A. §63G-3-304(2)(d).

Although the Rule Analysis and UDOH’s October 2, 2019, press release state that the

Emergency Rule “will remain in place for 120 days” the actual text of the Emergency Rule does

not contain the word “emergency” and also contains no restriction on the effective period of the

Emergency Rule. Accordingly, the Emergency Rule is, on its face, invalid because it is facially

effective in perpetuity in violation of U.C.A. §63G-3-304(2)(d).

C. Petitioners submit that an appropriate resolution would be to adopt a rule restricting the sale
of flavored electronic cigarette products to age-restricted locations and post signage notifying
potential patrons of age-related restrictions of the premises or amend the Emergency Rule in
the same fashion. The new rule would apply to Petitioners as general tobacco retailers.

Petitioners continue to remain partners with UDOH in reducing the use of tobacco and

electronic tobacco products by Utah’s youth. However, Petitioners believe that the Emergency

Rule does nothing to reduce the use of electronic tobacco products by youth. Despite being

under no requirement to do so, Petitioners have begun to enforce prohibitions on anyone 19 from

entering their businesses without a parent or legal guardian – the same requirement for specialty

19
tobacco retailers. Petitioners have posted signs outside of their establishments communicating

the extra efforts that they have taken, and are willing to take, to work with UDOH to reduce the

use of electronic cigarette products by Utah’s youth. Accordingly, Petitioners request that

UDOH enter an order amending the Emergency Rule and provide that general tobacco retailers

be permitted to continue to sell flavored electronic cigarette products so long as they comply

with the requirement that they prohibit anyone under 19 from entering their stores unless

accompanied by a parent or legal guardian or an active duty member of the military, as is

requirement of specialty tobacco retailers, to-wit:

(4) An individual who is less than 19 years old may not enter or be present
at a tobacco specialty shop unless the individual is:
(a) accompanied by a parent or legal guardian;
(b) present at the tobacco shop for a bona fide commercial purpose other
than to purchase a cigarette, tobacco, or an electronic cigarette; or
(c) 18 years old or older and an active duty member of the United States
Armed Forces, as demonstrated by a valid, government-issued military
identification card. U.C.A. §76-10-105.1.

CONCLUSION AND REQUEST FOR RELIEF

For the reasons set forth hereinabove, Petitioners request the UDOH enter a declaratory

order suspending/staying implementation, enforcement and/or application of Utah

Administrative Rule R 384-418-1, et seq. or, in the alternative, amend the existing Emergency

Rule to permit General Tobacco License Retailers to sell flavored electronic cigarette products in

an age restricted environment. In the event UDOH denies the requested relief sought herein,

Petitioners respectfully request they be given fourteen (14) days after issuance of the UDOH’s

Order so that appropriate judicial relief may be sought in District Court. In the interim and prior

to issuance of a decision on this Petition by UDOH, Petitioners request the Emergency Rule be

stayed by UDOH.
20
DYER LAW GROUP PLLC PETITIONERS

Phillip W. Dyer, Esq. Juan Bravo Date

Attorney for P etitioners Petitioner, Owner of VIP Vapors of Orem, LLC

Petitioner, Owner of Alternatives

Robert Knight Date

Petitioner, Co-Owner of Empire Merchandise
Company SLC, LLC

Brennan Gale Date

Petitioner, Co-Owner of Current Vapor and
Draper Vapor

BilalAhmad Date
Petitioner, Co-Owner of V.O.S. Retail LLC

Numair Khan Date

Petitioner, Owner of Greater Salt Lake Top Stop
LLC

Huaziafa Mohammad Date

Petitioner, Repr e s entat ive/A gent of ASA L
Enterprises LLC' dba HOV2
EXHIBIT A
R384. Disease Control and Prevention, Health Promotion.
R384-418. Electronic-Cigarette Mandatory Warning Signage and Sale Restrictions.
R384-418-1. Authority and Purpose.
(1) This rule is authorized by Section 26-1-30(4).
(2) The purpose of this rule is to protect health, safety and welfare of
the Utah youth, by requiring mandatory warning signs that warn consumers not to
use electronic-cigarette products to consume unregulated
tetrahydrocannabinol(THC) substances and by restricting the sale of flavored
electronic-cigarette products and electronic-cigarette substances in retail
tobacco specialty businesses.

R384-418-2. Definitions.
As used in this rule:
(1) "Business" means any sole proprietorship, partnership, joint
venture, corporation, association, or other entity formed for profit or non-
profit purposes.
(2) "Department" means the Utah Department of Health.
(3) "Electronic-cigarette product" means the same as the term is defined
in Subsection 59-14-802(3).
(4) "Electronic-cigarette substance" means the same as the term is
defined in Subsection 59-14-802(4).
(5) "General tobacco retailer" means a tobacco retailer that is not a
retail tobacco specialty business.
(6) "Flavored electronic-cigarette product" means an electronic-
cigarette product that has a taste or a smell distinguishable by an ordinary
consumer either before or during use or consumption of the electronic-cigarette
product, including but not limited to has a taste or smell of any fruit,
chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb,
spice, menthol or mint.
(7) "Flavored electronic-cigarette substance" means an electronic-
cigarette substance that has a taste or a smell distinguishable by an ordinary
consumer either before or during use or consumption of the electronic-cigarette
product, including but not limited to an electronic-cigarette product that has
a taste or smell of any fruit, chocolate, vanilla, honey, candy, cocoa,
dessert, alcoholic beverage, herb, spice, menthol or mint.
(8) "Local health department" means the same as the term is defined in
Subsection 26A-1-102(5).
(9) "Non-flavored electronic-cigarette substance" means an electronic-
cigarette substance that has a taste or a smell of tobacco that is
distinguishable by an ordinary consumer either before or during use or
consumption of the electronic-cigarette product.
(10) "Public retail floor space" means the total floor square feet of
the business where a customer can see, retrieve, or purchase any item that is
offered for sale by the general tobacco retailer, including all areas behind
the purchase counter, and including appurtenant areas used for storage.
(11) "Retail tobacco specialty business" means a commercial
establishment in which:
(a) The sale of tobacco products accounts for more than 35% of the total
quarterly gross receipts for the establishment;
(b) 20% or more of the public retail floor space is allocated to the
offer, display, or storage of tobacco products;
(c) 20% or more of the total shelf space is allocated to the offer,
display, or storage of tobacco products; or
(d) The retail space features a self-service display for tobacco
products.
(e) Any flavored electronic-cigarette product is sold.
(12) "Self-service display" means the same as that term defined in
Section 76-10-105.1.
(13) "Shelf space" means the total cubic feet (length x depth x height)
of shelf space contained within the retail space that is used for the offer,
display, or storage of items that are offered for sale by the tobacco retailer.
The shelf height is measured from the top of the tallest item on the top of the
shelf. The shelf length is measured from the end of the longest item at the
end of the shelf. Empty shelf space is not included in the total shelf space
calculation.
(14) "Tetrahydrocannabinol" (THC) means the same as that term defined in
Subsection 58-37-4(2)(a)(iii)(AA).
(15) "Tobacco product" means the same as that term defined in Section
59-14-102.
(16) "Tobacco retail permit" means the permit issued by the local health
department to general tobacco retailers and retail tobacco specialty businesses
for the sale, marketing or distribution of tobacco products.

R384-418-3. Responsibility for Compliance.

(1) Each business, must comply with this rule, is independently
responsible to assure compliance and each may be held liable for noncompliance.
(2) General tobacco retailers and retail tobacco specialty businesses
shall not endorse or represent an electronic-cigarette product as safe due to
complying with this rule.
(3) General tobacco retailers and retail tobacco specialty businesses
shall comply with the mandatory warning signs part of this rule within 6
calendar days, or by Monday October 7, 2019, after the effective date of this
rule.
(4) General tobacco retailers shall comply with the prohibited sale of
flavored electronic-cigarette products part of this rule within 6 calendar
days, or by Monday October 7, 2019.

R384-418-4. Mandatory Warning Signs.

(1) As a condition to sell electronic-cigarette products, general tobacco
retailers and retail tobacco specialty businesses shall display a mandatory
warning sign, warning consumers not to use electronic-cigarette products to
consume unregulated THC electronic-cigarette substances.
(2) Mandatory warning signs shall be posted at all entrances or in a
position clearly visible on entry into the retail location and at each register
inside the retailer location where the electronic-cigarette product transaction
or sale occurs.
(3) Mandatory warning signs will be created by the Department. Local
health departments may distribute the mandatory warning signs for general
tobacco retailers and retail tobacco specialty businesses upon request.
Retailers may use the Department issued mandatory warning signs or display a
warning sign that complies with the signage requirements in this rule.
(4) Mandatory warning signs required in this section must be easily
readable and must not be obscured in any way. The mandatory warning sign must
state "Vaping unregulated THC is dangerous to your health. A lung disease
related to vaping unregulated THC has recently hospitalized dozens of Utahns
and caused several deaths nationwide." The words "Vaping unregulated THC is
dangerous to your health" must be no less than 0.75 inches in height and the
words "A lung disease related to vaping unregulated THC has recently
hospitalized dozens of Utahns and caused several deaths nationwide" must be no
less than 0.25 inches in height.

R384-418-5. Allowed and Prohibited Sale of Flavored Electronic-Cigarette

Products.
(1) Only retail tobacco specialty businesses with a valid retail tobacco
specialty permit issued by a local health department may sell flavored
electronic-cigarette products and flavored electronic-cigarette substances.
(2) General tobacco retailers shall not sell flavored electronic-
cigarette products and flavored electronic-cigarette substances.
(3) General tobacco retailers may sell non-flavored electronic-
cigarette products and non-flavored electronic-cigarette substances.
(4) The sale of THC electronic-cigarette products and THC electronic-
cigarette substances is illegal in the State of Utah unless the sale is made in
compliance with Title 26, chapter 61a, Utah Medical Cannabis Act, or Title 4,
Chapter 41A, the Cannabis Production Establishments.

R384-418-6. Local Authority to Promulgate Laws

Nothing in this rule shall be construed to limit local health departments
or other local governmental entities with authority, from promulgating
ordinances and laws that are in addition to or stricter than this rule as long
as such laws do not conflict with or impede the provisions of this rule.

R384-418-7. Enforcement.
(1) The Department may enforce and seek penalties for the violation of
the standards for electronic cigarettes set forth in this rule as prescribed in
Sections 26-23-1 through 26-23-10.
(2) A local health department may enforce and seek penalties for the
violation of the standards for electronic cigarettes set forth in this rule. A
local health department shall have authority to enforce and seek penalties for
violations of public health law including this rule as is found in Sections
26-23-1 through 26-23-10, Sections 26-62-301, 26A-1-108, 26A-1-114(1) and
26A-1-123.
(3) Administrative or civil enforcement of this rule by the Department
or local health departments does not preclude criminal enforcement by a law
enforcement agency and prosecution of any violation of the standards in this
rule that can constitute a criminal offense under state law.

KEY: electronic-cigarette products, electronic-cigarettes substances, general

tobacco retailers, retail tobacco specialty businesses
Date of Enactment or Last Substantive Amendment: New
Authorizing, and Implemented or Interpreted Law: 26-1-30
EXHIBIT B



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EXHIBIT C
-----------------------------------------------------------------------------------------------------------------------------------------

Vaping-related Lung Injury, Utah, 2019: Investigation to Date

Updated September 30, 2019
------------------------------------------------------------------------------------------------------------------------------------------

Introduction
As of Monday, September 30, 2019, 71 cases of vaping-related lung injury have been reported to Utah
Department of Health (UDOH), with an additional 10 potential cases under review (see Table 1). Given
the evidence outlined below, vaping THC cartridges or “carts” is likely the driver of this outbreak of
severe lung injury. The UDOH recommends people do not vape THC cartridges until we learn more.

Table 1. Cases by Case Status and Interview Status, Utah Local Health Departments, Utah, 2019

Local Health District # of Cases # of Cases Under Review

Salt Lake 39 3
Utah 11 1
Davis 9 0
Weber-Morgan 5 3
Other LHDs 7 3
Total 71 10

Demographics
Men account for 82% of the Utah cases while women account for 18%, which is similar to case
demographics seen in other states. Most cases are in their 20s or 30s. The median age in Utah of 26
(range: 14–66) is three years older than the current national median age of 23.

1
 Figure 1. Age Distribution (Age Groups as % of Total), Vaping-related Lung Injury, Utah, 2019

50
45
40
35
percentage 30
25
20
15
10
5
0
10-19 20-29 30-39 40-49 50-59 60-69
age group

Disease Severity
x 50 confirmed and probable cases had full medical abstractions.
x 36 cases were interviewed for information on symptoms and exposures.
x Medical data was gleaned solely from abstractions; exposure data was gleaned primarily from
interviews and secondarily from abstractions.

Among Utah cases, 90% were hospitalized. The median length of hospital stay among those with known
discharge dates was six days (range: 1–17 days). More than half of cases were admitted to an intensive
care unit (ICU) and many were diagnosed with acute respiratory distress syndrome (ARDS). The majority
of cases required breathing assistance during their illness, most through a CPAP or BiPAP mask but some
through intubation for ventilator support.

Table 2. Measures of Disease Severity, Vaping-related Lung Injury, Utah, 2019*

Measure # of Cases Total Cases %

Hospitalized 45 50 90
ICU 26 41 63
ARDS 15 35 43
CPAP/BiPAP 25 34 74
Intubated 8 35 23

2
Exposures and Acquisition
More than 90% of cases self-reported vaping THC cartridges and 63% self-reported vaping nicotine
(Table 2). Many cases also self-report vaping both substances (60%). Among those who self-reported
vaping only THC or nicotine, more cases vaped only THC cartridges (37%) compared to those who vaped
only nicotine.

Table 3. Self-Reported Substances Vaped, Subset of Cases,

Vaping-Related Lung Injury, Utah, 2019 (n = 36)

Substance # of Cases %
Any THC cartridges 34 94
Any nicotine 23 64
Both THC cartridges and nicotine 21 58
THC only 13 36
Nicotine only 2 6

The most commonly self-reported frequency of use for THC products was 1–5 times per day. The most
commonly self-reported frequency of use for nicotine products was more than 51 times per day. Several
cases also self-reported vaping THC products more than 51 times per day.

Figure 3. Self-Reported Frequency of Use by Product Type (Nicotine and THC),

Total Products Used (n=51), Subset of Cases,
Vaping-Related Lung Injury, Utah, 2019

Most THC products were acquired through friends (35%), online (33%), and in-person dealers (20%). A
few THC products were acquired at out-of-state dispensaries or purchased at vape shops in Utah. Since
many patients self-reported the use of multiple products, the UDOH was unable to identify which
product or products may have led to illness. Nicotine products were acquired mostly at vape shops in
Utah (42%) or from friends (24%), but also at convenience stores and online.

3
 Figure 4. Self-Reported Place Acquired (%), THC Products (n = 49), Nicotine Products (n = 38), and
Devices (n = 3), Subset of Cases, Vaping-Related Lung Injury, Utah, 2019

THC cartridges bought off the street often use brand-associated packaging. Four such “brands” each
were reported by more than 20% of cases who used THC cartridges. The UDOH cannot determine
whether these are legitimate or counterfeit products.

Table 4. Self-Reported “Brands” of THC Cartridges among those who used THC Cartridges,
Subset of Cases, Vaping-Related Lung Injury, Utah, 2019 (n = 34)

Substance # of Cases %
Dank Vapes 13 38
Rove 12 35
Golden Gorilla 9 26
Smart Cart 7 21

Laboratory Investigation
The UDOH Utah Public Health Laboratory (UPHL) has been working with state and national laboratories
to test products used by case patients. Thirty-nine samples were tested at the UPHL for several chemical
compounds including illicit drugs (e.g., opioids, fentanyl, and methamphetamines), cutting agents, and
biologic toxins. Of the 39 products tested by the UPHL, 19 were THC cartridges and 20 were nicotine e-
juices (Table 6). Almost all THC cartridges tested contained vitamin E acetate (17/19, 89%), a known
cutting agent. One THC cartridge contained no THC at all. In contrast, no nicotine products tested
showed any unexpected compounds.

4
 Table 5. Summary of Case-associated THC and Nicotine Vaping Product Laboratory Results,
Vaping-related Lung Injury, Utah, 2019

Chemical Compounds Identified (% of Total Samples)

Samples Vitamin E Long-Chain Fatty
tested Nicotine THC Acetate Acids
THC Cartridges 19 5% 95% 89% 5%
Nicotine 20 100% 0% 0% 0%

Acknowledgements
The UDOH would like to thank staff at each of the Utah local health departments and clinicians within
the Intermountain Healthcare and University of Utah health care systems for their help with this
investigation. Staff at the Utah Public Health laboratory have also been instrumental in the efficient
testing of product samples.

5
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EXHIBIT 2
TOBACCO PREVENTION
AND CONTROL IN UTAH
Sixteenth Annual Report, October 2016

Persistence Always Beats Tobacco

Utah Department of Health

Tobacco Prevention and Control Program
 Utah Department of Health
Tobacco Prevention and Control Program

(877) 220-3466
www.tobaccofreeutah.org
www.health.utah.gov
To view this report online, visit
www.tobaccofreeutah.org/pdfs/
TABLE OF CONTENTS

Tobacco Prevention and Control in Utah

Helping Tobacco Users Quit....................................................................................................................... 5
Anti-tobacco Advertising .......................................................................................................................... 7
Preventing Youth Tobacco Use................................................................................................................... 11
Eliminating Exposure to Secondhand Smoke / Cigarette Consumption................................................... 12
Ending Tobacco-related Disparities............................................................................................................ 13
Electronic Cigarettes / Vaping Products..................................................................................................... 14
TPCP Use of Funds, FY2016...................................................................................................................... 15

Small Areas and Local Health Districts

Smoking Rates by Local Health District and Utah Small Area................................................................... 16
Bear River Health Department............................................................................................................. 17
Central Utah Public Health Department............................................................................................... 18
Davis County Health Department......................................................................................................... 19
Salt Lake County Health Department................................................................................................... 20
San Juan Public Health Department..................................................................................................... 21
Southeast Utah Health Department..................................................................................................... 22
Southwest Utah Public Health Department......................................................................................... 23
Summit County Health Department..................................................................................................... 24
Tooele County Health Department....................................................................................................... 25
TriCounty Health Department............................................................................................................... 26
Utah County Health Department.......................................................................................................... 27
Wasatch County Health Department.................................................................................................... 28
Weber-Morgan Health Department...................................................................................................... 29

Tobacco Prevention and Control Program Partners....................................................... 30

References...................................................................................................................................................... 31
 LETTER FROM THE EXECUTIVE DIRECTOR
The Utah Department of Health strives to help Utahns live happy and healthy lives. One of the best ways
to improve health is to quit smoking. In FY16, we saw a decrease in adult cigarette smoking rates across
the state. The Utah Tobacco Prevention and Control Program (TPCP) continues to provide services for Utah
residents to help them quit. Last year there was an increase in the use of these services. This progress is
commendable but there is still more work to do to end nicotine dependence.

We will continue the TPCP cessation work by promoting the Utah Tobacco Quit Line, providing online sup-
port through waytoquit.org, and working with partners across the state. Utah citizens collectively incur an
estimated $542 million in annual medical costs directly related to smoking and tobacco use which is the
leading cause of preventable death.

The TPCP is focused on helping Utahns quit and preventing initiation of new smokers. Young people have
historically been targeted by the tobacco companies and that remains a concern today. While youth use of
cigarettes both in Utah and nationally continue to decline, more and more youth are turning to alternative
tobacco products including chew, hookah, and e-cigarettes. These products still contain nicotine, just like
traditional cigarettes, which is as addictive as heroin.

E-cigarettes or vaping have increased in popularity amongst Utah teens in recent years. In 2015, one in 10
Utah high school students used e-cigarettes regularly. This is almost double the use rate in 2013. Teens in
peer groups that engage in addictive behaviors are more likely to participate in other risk behaviors which
can include the use of alcohol and other substances.

Research shows that using nicotine or other substances before the brain is fully developed can “re-wire” the
brain, resulting in difficulty learning, a greater risk for mental health disorders, and predispose an individual
to addiction for the rest of their life. Nicotine, alcohol, and marijuana use is commonly initiated during teens
years. Preventing their use is critical to helping young people avoid addiction to other substances later in life.

Now, it is my pleasure to present this report detailing our progress in tobacco prevention and control during
the past year. We express our appreciation to the Utah State Legislature, the Tobacco Control Advisory Com-
mittee, our Independent Evaluation Team at the Research Triangle Institute, and our state and local partners
for their guidance and commitment to the health and well-being of our communities.

Sincerely,

Joseph K. Miner, MD, MSPH
Executive Director
Utah Department of Health

4
HELPING TOBACCO USERS QUIT Utah Quit Facts
In FY16 :
With 73% of Utahns who smoke cigarettes planning to
quit within the next year1, the TPCP has free services
available to help. Evidence-based cessation counseling
programs, quit medications, and other resources were
made available in FY16 through the TPCP’s way to quit
program.

4,681
Calls Registered*

The Utah Tobacco Quit Line

The Utah Tobacco Quit Line (1.800.QUIT.NOW) is a free

statewide telephone coaching service available to all
835
Web Enrollments
Utah residents. This service includes:
• Five calls with an experienced coach
• A customized quit program
• Free nicotine replacement therapy (NRT) patches or
gum if eligible
• 24/7 help line
1,432
Health Care Provider Referrals

8,394
Average Monthly Web Visits

Quitting Online 27
Online quit coaching is growing in popularity among Counties Served
Utah tobacco users. It offers a number of services
including:
• Access to a quit coach through online chat
• A support community
• Interactive lessons and exercises
• Motivational emails
• Free nicotine replacement therapy (NRT) patches or
130
Referring Partner Clinics
gum if eligible
• 24/7 chat
*Of the callers enrolled in the Quit Line:
Both the Utah Tobacco Quit Line and online coaching
• 28.1% were Medicaid clients2
are also available in Spanish at 1-855-Dejelo-Ya or
• 33.5% were uninsured2
dejeloya.org.

Helping Tobacco Users Quit

5
HELPING TOBACCO USERS QUIT Programs to Help Youth Quit Tobacco

It takes the average tobacco user 8-11 quit attempts In FY16, 541 Utah
before they are finally successful. Without help, only youth participated in
7-8% are successful at quitting.3 The TPCP worked with a group-based teen
local health departments and health care providers to tobacco cessation No miracles. No excuses.

reach more Utahns who are ready to quit. program, Ending Just real help
quittiNg.

Nicotine Dependence
Engaging Health Systems in Tobacco Cessation (END), and 341 youth
received services from
In FY16, the TPCP partnered with concerned advocates the Teen Tobacco Quit
who worked with the Utah Insurance Department Line. The majority of
(UID) to provide guidance to private insurers regarding teen cessation program
the coverage requirements for tobacco cessation as participants were
required by the Affordable Care Act (ACA). A bulletin referred by courts after a
outlining this coverage was released by the UID on citation for tobacco use Join the END Program, which stands for Ending
Nicotine Dependence. Helping you quit tobacco is
what we do. To find out more about the END Program

Dec. 11, 2015. or possession.

in your area, take a card and call the number.

TPCP also worked with the local chapter of the

American Lung Association to provide a webinar by
Segue Consulting that helped health insurers and The #1 indicator of whether or not a
insurance brokers understand how to administer the
ACA tobacco cessation benefit requirements.
person will successfully quit tobacco is
the number of times they’re willing to
try.
Adult Smoking by Year
In 2015, 9.1% of Utah adults1 (approximately 190,000 adults) reported that they currently smoked cigarettes. Utah
has the lowest smoking rate in the nation.

To ensure the rates continue to decline, tobacco users need continuous access to evidence-based quit services.
Mass media education and strong tobacco policies encourage quit attempts and enforce tobacco-free social
norms.

Percent of Utah Adults (18+) Who Currently Smoke Cigarettes by Year, 2010-2015 (Age-adjusted)1

20

11.2 11.3
10.2 10.2 9.5
Percentage

9.1
10

0
2010

2011

2012

2013

2014

2015

Helping Tobacco Users Quit

6
ANTI-TOBACCO ADVERTISING The goals for the campaign are in line with the TPCP’s
program goals of encouraging tobacco users to
A key component to the TPCP’s communication quit, preventing youth from starting down the road
with Utah smokers is a comprehensive anti-tobacco of addiction, protecting Utahns from the effects of
marketing campaign. The marketing campaign reached second-hand smoke, and eliminating health disparities
thousands of Utahns with targeted messages and among special populations. The media used to achieve
interactive experiences to inspire smokers to quit and these goals and make an impact on the overall health
feel supported in their quit attempt. of Utahns included TV, radio, outdoor, online, website,
and social media.

1 7 15 ST
TRY TH TRY TH
TRY Persistence
always beats
tobacco.

SHELLEY | OGDEN
Shelly from Ogden was one of three quitters featured in the “Persistence” campaign which included billboards and online ads..

Outdoor

Broad reach outdoor ads promoted the successes of Utahns in their fight against tobacco addiction and
highlighted the toll tobacco can take.

“Unraveled” was an online and outdoor ad campaign that highlighted the toll tobacco can take.

Anti-tobacco Advertising
7
Online

Online ads mirrored the outdoor messages, reminding smokers that quitting can take several attempts, but it is
important to keep trying. Online success is measured through click through rates and visits to waytoquit.org.

Number of Utah Online Anti-tobacco Ad Media Impressions and Visits to the waytoquit.org by
Month, FY 2016

16,000,000 16,000
Online Media Impressions

14,000,000 14,000
12,000,000 12,000
10,000,000 10,000
8,000,000 8,000
6,000,000 6,000
4,000,000 4,000
2,000,000 2,000
- -
Jul-15 Aug-15 Sep-15 Oct-15 Nov-15 Dec-15 Jan-16 Feb-16 Mar-16 Apr-16 May-16 Jun-16

Online Media Impressions WaytoQuit Website Visits

Website

waytoquit.org was optimized to funnel visitors to the most effective quitting

resources. The website effectiveness is measured by the time spent on pages
containing key messages.

Page Page Views Average Second on Page

1 Home Page 125,515 82
2 How to Quit 8,537 129
3 Why Quit 4,842 87
4 Healthcare Providers 2,465 35
5 Help Others 1,244 48
6 Get Involved 881 73
7 Health Effects 643 175
8 Quit Now 624 20
Jacob from Salt Lake City was one of 9 Refer Patients 623 161
three quitters featured in the “Persistence”
campaign which included billboards and
online ads.

Anti-tobacco Advertising
8
Television and Radio

• High-impact TV campaign using an emotionally driven message that inspires quit attempts
• Targeted radio campaign comprised of :30 second spots reminding listeners of the gruesome realities of
tobacco use
• Broadcast success is measured by its impact on the number of calls to the Quit Line
• Additionally, TV spot effectiveness is measured through online testing of the creative

Number of Utah Tobacco Quit Line Calls and TV Anti-tobacco Ad Impressions by Month, FY 2016

700 4,500,000
600 4,000,000
3,500,000
Quit Line Calls

500
3,000,000
400 2,500,000
300 2,000,000
1,500,000
200
1,000,000
100 500,000
- -
Jul-15 Aug-15 Sep-15 Oct-15 Nov-15 Dec-15 Jan-16 Feb-16 Mar-16 Apr-16 May-16 Jun-16

Quitline Calls TV Impressions

In FY16, the TPCP’s original commercials, “Darling” and

“Anxiety,” tested among the 7 best national and state
tobacco cessation ads ever tested in Utah.

“Darling” is an original television commercial produced by the TPCP.

Anti-tobacco Advertising
9
Social Media • Quit Tips—Informative tips and resources that help
those trying to quit
Facebook has been identified as an opportunity to • Sharing a Message—By sharing posts from other
build a community of support for those who are trying organizations we become part of the social
to quit and those who want to help others quit. With media community
more than 16,000 followers, the page regularly reaches
15,000 people per week. Forty-four percent of the As a result, interactions on the page are continually
people reached are ages 18-34 with 61 percent of growing with people sharing inspiring messages with
those being female. others.

The most shared and interactive with posts include

short videos that are entertaining but have an
important quit message.

All of the content on the Facebook page falls into one

of four categories:
• Share Your Quit—Real stories from real Utahns who
have quit
• Timely Posts—Capitalizing on current events and
trends to push the anti-tobacco message

Anti-tobacco Advertising
10
PREVENTING YOUTH TOBACCO USE Reducing Tobacco Sales to Minors
Nicotine use during adolescence can disrupt brain The TPCP partnered with Utah’s local health depart-
development and affect attention, learning, and ments to educate tobacco retailers about Utah tobacco
susceptibility to addiction.4 To prevent youth tobacco laws, conduct compliance checks to ensure enforce-
use, the TPCP supports: ment of the laws, and recognize stores that have a re-
cord of not selling tobacco to underage youth. In 2016,
• Tobacco-free policies in schools and communities
vape products were included in educational campaigns
• Youth involvement in policy development
and compliance checks.
• Enforcement of laws that restrict tobacco sales
to underage youth
. In FY16, 6.7% of Utah tobacco retail-
OUTRAGE! - Involving Youth in Prevention ers sold tobacco or vape products to
In FY16, Utah’s anti-tobacco youth coalition, OUT- underage youth during compliance
RAGE!, adopted the slogan #NotTobaccosGuineaPig to checks.
educate community leaders and fellow students about
electronic cigarettes and other vape products and the Working With High Risk Students
risks associated with nicotine addiction.
To better understand and reach youth tobacco users,
the TPCP worked with its independent evaluation team
at RTI International to:
• Study tobacco use and anti-tobacco advertising in
Utah’s alternative high schools which serve students
who are at increased risk for tobacco and vape
product use
• Conduct focus groups with youth to better under-
stand their attitudes and beliefs about electronic
cigarettes and other vape products

#NotTobaccosGuineaPig making their debut with OUTRAGE! TPCP is using the results of these studies to develop
campaigns to reduce youth addiction to nicotine.
Youth Tobacco Use by Product Type
In 2015, one in 10 Utah students in grades 8, 10, and 12 reported that they had used an electronic cigarette or
vape product in the past 30 days and nearly one in four students reported that they had tried these products.
Use of electronic cigarette nearly doubled from 5.8% in 2013 to 10.5% in 2015. Utah students reported small
declines in current use of conventional cigarettes, hookahs, cigars, chew, and snus.5

Percent of Utah Students in Grades 8, 10, and 12, Who Tried Tobacco Products or Used Tobacco
Products in the Past 30 Days by Type of Product, 2015.5
30
Percentage of Students

22.9
25
20
15 13.1 11.4
10.5
10 7.7
3.4 3.4 3.9
5 1.6 1.1 2.3 0.6
0

Tried Product Used Product in the Past 30 Days

Preventing Youth Tobacco Use

11
ELIMINATING EXPOSURE TO • 12 healthcare sites passed new policies; 1 site
strengthened their policy
SECONDHAND SMOKE • 11 outdoor venues passed new policies; 20 venues
Many of the 4,000 strengthened their policies
chemicals in secondhand
smoke (SHS) are toxic and The number of smoke-free housing units in TPCP’s
can cause cancer, heart Smoke-free Apartment and Condominium Statewide
disease, and respiratory Directory increased by 6,947 to more than 35,400
diseases. Despite recent units in 18 Utah counties. The majority of communities
declines in cigarette added were public and affordable housing. The
smoking and restrictions TPCP partners sent out a mailer to more than 100
on smoking in public communities/property management companies to
places, exposure to SHS promote smoke-free housing and the TPCP multi-
remains a serious health unit housing smoke-free policy toolkit. The toolkit
risk among Utah children and adults: and smoke-free signage were also distributed at the
Utah Apartment Association Annual Fair Housing and
• In 2015, nearly 14,000 Utah children were exposed
Education Trade Show. It can be accessed at http://
to SHS inside their homes during the past week1
www.tobaccofreeutah.org/muh-intro.html.
• 34.5% of Utah adults reported breathing SHS in
the past week at indoor or outdoor locations1

Policies to Reduce SHS Exposure Cassandra Fairclough,

Utah Indoor Clean Air
Laws and other regulations that ban smoking in public Act Coordinator for the
Utah Department of
places reduce SHS-related diseases and help smokers Health, presents smoke-
quit. In FY16, the TPCP and its partners assisted free housing information
worksites, healthcare facilities, cities, and multiple at the Utah Apartment
Association Annual Fair
housing unit complexes in passing or strengthening Housing and Education
tobacco-free or smoke-free policies: Trade Show.

• 20 worksites passed new tobacco-free policies;

8 worksites strengthened their policies

TAX INCREASES LEAD TO DECLINES IN CIGARETTE CONSUMPTION

Since 1990, the per capita cigarette consumption in Utahhas declined by 62.5%.6 Increases in the state cigarette
excise tax in 1997, 2002, and 2010 are associated with decreases in consumption in the following years. Strong tobac-
co-free policies, mass media education, and evidence-based quit programs also contributed to declines in smoking.

Number of Cigarette Packs Sold per Capita by Year, Utah, 1990-20156

1997 State Cig Tax

Number of Cigarette Packs Sold per Capita

80 Increase:
70 $0.27 to $0.52
2002 State Cig Tax
60 Increase:
$0.52 to $0.70 2010 State Cig Tax
50
Increase:
40 $0.70 to $1.70
30
20
10
0
1990

1992

1994

1996

1998

2000

2002

2004

2006

2008

2010

2012

2014

Eliminating Exposure to Secondhand Smoke

12
ENDING TOBACCO-RELATED Disparities Networks
DISPARITIES The TPCP continued to fund four community-based
networks representing the African American, Native
Targeted tobacco industry marketing can impact the risk American, Hispanic/Latino, and Pacific Islander
for tobacco use and nicotine addiction among select communities in Utah. In FY16, the networks created
population groups. prevention and cessation messages and shared them
with their communities.
The TPCP uses data to identify population groups with
increased tobacco use rates. Through partnerships
with community organizations, the TPCP supports the
development of local policies and tobacco prevention
and cessation programs that are culturally and
linguistically appropriate.

Gail was featured in the FY16 Share Your Quit campaign.

AUCH Partnership
In FY16, 667 low-income or uninsured tobacco users
received counseling and tobacco cessation medications
through the TPCP’s work with the Association for Utah
Community Health (AUCH).

Medicaid Partnership
In FY16, the TPCP’s partnership with Medicaid provided
Angelica Nash, TPCP Disparities Coordinator (center) and leaders of the TPCP Disparities
Networks.
tobacco cessation services and/or quit medications to
801 general Medicaid clients and 1,282 pregnant
women on Medicaid.
Disparities in Cigarette Smoking
Among racial and ethnic groups, the risk for cigarette smoking is highest in African American/Black communities
and American Indian/Native Alaskan communities. The smoking rate for Utahns who don’t have health insurance
is also significantly higher than the state average of 9.1%.1

Percent of Utah Adults Who Smoke Cigarettes by Race/Ethnicity, Sexual Orientation, and
Insurance Status, 2014 and 2015 (Combined Data; Age-adjusted).1
50%
40%
Current Smokers

30% 19.2%
14.9% 11.3%
20% 12.5% 16.1%
9.1% 10.8%
5.9% 9.1% 8.3%
10%
0%

Ending Tobacco-related Disparities

13
ELECTRONIC CIGARETTES / VAPING
PRODUCTS
Since 2011, the use of
e-cigarettes by Utah youth
has increased five-fold.5 Use
of e-cigarettes or vaping
products by youth is a major
concern; the nicotine in these
products is addictive and can
affect the developing brain.
Monitoring the availability
and use of these products
remains a public health
priority for the TPCP.

Electronic cigarettes or
vaping products are marketed Regulating Electronic Cigarettes in Utah
under many names but are
To prevent accidental poisonings, Utah legislators
most commonly referred to
authorized the UDOH to make a rule to set standards
as electronic cigarettes,
for e-cigarette liquids in terms of labeling, nicotine
e-cigarettes, vape pens,
content, packaging, and product quality. With the
e-hookahs, mods, or tanks.
help of stakeholders, the TPCP developed this rule.
In June 2016, the FDA released federal regulations of
Public Health Concerns e-cigarettes preempting some of the Utah provisions.
• Products are available in fruit and candy-like flavors The TPCP is currently in the process of modifying the
that are known to be attractive to children Utah rule.
• Advertising often includes false or exaggerated
claims regarding use and safety of these products7
• Youth use rates and potential for nicotine addiction Proven Ways to Reduce Youth
among youth are increasing Nicotine Use:

Utah youth who have never tried - Stronger enforcement of zoning laws
conventional cigarettes report use of for tobacco specialty and vape shops
e-cigarettes or other vape products.5 - Restrictions on flavors
- Restrictions on price promotions and
advertising
Percent of Utah Students in Grades 8, 10, and 12 Who - Price increases through taxes
Tried E-Cigarettes or Used E-Cigarettes in the Past 30 - Increasing the tobacco purchase age
Days by Year, 2013 and 2015.5
30
Percentage of Students

22.9
25
20
15 12.0 10.5
10 5.8
5
0
Tried Electronic Cigarettes Used Electronic Cigarettes
in the Past 30 Days
2013 2015

Electronic Cigarettes / Vape Products

14
TPCP USE OF FUNDS, FY2016 In-kind Revenue: Campaign Added Value

Media vendors donated approximately $2.06 for every

State Funds $1 spent by the TPCP on anti-tobacco media buys
Utah Tobacco Settlement Account: $3,920,749 including ad time, news specials, and other media
Utah Cigarette Tax Restricted Account: $3,161,750 events. The total campaign added value was $2.77
million in FY16.
Drawdown of Federal Funds
Tobacco-related Expenditures
Federal and private revenues depend on matches
In 2013, the tobacco industry spent an estimated
with state funds.
$41.3 million to market tobacco products in Utah
Our work with retailers to prevent underage tobacco and recruit new tobacco users.9
sales protects $6.4 million in Synar block grant
In 2012, the Utah cigarette tax revenue was $95.9
funding for Utah’s Division of Substance Abuse and
million.10
Mental Health. The Synar amendment regulates
youth access to tobacco products. The Utah 2016 Tobacco Master Settlement Agreement
(MSA) payment was $36.9 million.11
TPCP secured $1,408,740 in funding from the
The Centers for Disease Control and Prevention
Centers for Disease Control and Prevention.
recommends that Utah spend $19.3 million annually
to reduce tobacco use.10 At $8.7 million, the TPCP was
funded at 45% of this recommended level.

Estimated Annual Cost of Smoking in Utah; Cigarette and Tobacco Tax Revenue; Tobacco Industry
Marketing Expenditures in Utah; Utah Tobacco Settlement Payment; and CDC Recommended and
Actual Annual TPCP Budget9,10,11

600 542.0
500
Dollars (in millions)

400
293.6
300

200
95.9
100 41.3 36.9 19.3 8.7
0
Annual Direct Annual Lost 2015 Utah Estimated Annual 2016 Estimated CDC FY16 TPCP Budget
Medical Expenses Productivity Due Cigarette Tax Utah Tobacco Utah MSA Recommended
Due to Smoking in to Smoking in Revenue Industry Payment TPCP Investment
Utah Utah Marketing in Utah
Expenditure

Jamie from Salt Lake City

was one of three quitters
featured on billboards
and online as part of the
“Persistence” campaign.

Tobacco Prevention and Control Program Use of Funds, FY2016

15
SMOKING RATES BY LOCAL HEALTH DISTRICT AND UTAH SMALL AREA
Current Cigarette Smoking by Local Health District, Small Area, Utah, and U.S. Adults,
2014-2015, (Aggregate Data, Age-adjusted)1

Current Smokers
0% 10% 20% 30% How to Read this
Bear River LHD
Graph:
Box Elder County*
Brigham City LHD Local health districts
Cache/Rich County
Logan Small Area are represented by red
Central Utah LHD
Juab/Millard/Sanpete County bars. Small areas within
Sevier/Piute/Wayne County local health districts
Davis County LHD
Bountiful are represented by
Clearfield/Hill AFB gray bars. Small area
Farmington/Centerville
Layton definitions can be found
Syracuse/Kaysville at http://health.utah.gov/
Woods Cross/North Salt Lake*
Salt Lake County LHD opha/IBIShelp/sarea/
Avenues UtahSmallAreaInfo.pdf.
Cottonwood
SLC Downtown
Foothill/U of U* The horizontal lines
Glendale
Holladay represent 95%
Kearns
Magna confidence intervals,
LHD or Small Area

Midvale which indicate that

Millcreek
Murray the given interval
Riverton/Draper will contain the true
Rose Park
Sandy measurement value 95%
Sandy NE of the time.
Sandy SE*
South Jordan
South Salt Lake
Taylorsville East/Murray West We use small area data to
Taylorsville West
West Jordan NE identify and reach individuals
West Jordan SE who are at higher risk for
West Jordan West/Copperton
West Valley East tobacco use.
West Valley West
San Juan LHD**
Southeastern LHD At 20.8%, the Grand and
Carbon/Emery County
Grand/San Juan County San Juan County area has
Southwest LHD the highest smoking rate
Cedar City
Other Southwest District among Utah’s Small Areas
St George
Washington County statewide.
Summit County LHD
Tooele County LHD
TriCounty LHD At 3.1%, the Pleasant Grove
Utah County LHD and Lindon area has the
American Fork/Alpine
Lehi/Cedar Valley lowest smoking rate among
Orem East**
Orem North* Utah’s Small Areas state-
Orem West* wide.
Pleasant Grove/Lindon*
Provo North/BYU*
Provo South*
Springville/Spanish Fork * These estimates have relative
Utah County South
Wasatch County LHD standard errors of >30% and do not
Weber-Morgan LHD meet UDOH standards for reliability.
Ben Lomond
Morgan County/Weber County **The estimates for San Juan Public
Ogden Downtown
Riverdale Health District and Orem East have
Roy/Hooper been suppressed because the relative
South Ogden standard error was greater than 50%
or could not be determined.

Utah (2015) 9.1% US (2015) 17.2%

Smoking Rates by Local Health District and Small Area

16
 Kick Butts Day with the Local Governing Youth
Council (GYC)

For Kick Butts Day, the Bear River GYC partnered

with a local grocery store to spread awareness
about the impact of smoking. The youth shared
tobacco cessation and prevention information and
invited people to write or draw additional messages on a
large banner that was displayed in the store.
Working with Healthcare Providers to Promote
Tobacco Cessation Working with Retailers to Reduce Youth Smoking
BRHD continued to educate retailers about youth
The Bear River Health Department (BRHD) collaborated
access laws in Utah. Since 2001, illegal sales of
with HealthInsight to educate healthcare providers
tobacco to underage youth in the Bear River health
out resources for tobacco cessation such as use of
district have declined by 72%. In 2016, 3.1% of
the 5 A’s, Stepping On, and Living Well with Chronic
retailers in the district sold tobacco or vape products
Conditions classes.
during compliance checks.
BRHD also provided tobacco cessation education
to local hospital care managers and VOC Rehab.

Freedom From Smoking

BRHD worked with local businesses to
BRHD facilitated a Freedom from Smoking class for promote tobacco free worksite policies.
As part of this effort, the Flower Shoppe
adults wanting to quit. The class was promoted to in Logan passed a tobacco free worksite
local businesses, through social media, and a local policy and posted a sign informing
customers of the policy.
newspaper. In following up with attendees six weeks
after the class had ended, it was noted that two people
had quit completely and three people had cut back on
their tobacco use.

Tobacco Statistics
BRHD STATE
Cigarette Smoking
Adult Cigarette Smoking (2015)1 5.2% 9.1%
Youth Cigarette Smoking in Grades 8, 10, 12 (2015) 5
2.3% 3.4%
Pregnant Women Smoking (2014) 12
4.4% 4.2%
Use of Electronic Cigarettes and Smokeless Tobacco
Youth Experimentation with Electronic Cigarettes in Grades 8, 10, 12 (2015)5 17.1% 22.9%
Youth Use of Electronic Cigarettes in Grades 8, 10, 12 (2015)5 7.4% 10.5%
Adult Experimentation with Electronic Cigarettes (2014-2015) 1
9.1% 13.2%
Adult Use of Electronic Cigarettes (2013-2015)1
3.3% 4.7%
Adult Use of Chewing Tobacco, Snuff, or Snus (2014-2015) 1
2.0% 2.9%
Secondhand Smoke Exposure
Adults Exposed to Secondhand Smoke Indoors or Outdoors in the Past Week (2015)1 34.6% 34.5%
Quit Service Utilization
Number of New Quit Line Registrations (FY16)2 164 4,681
Number of New Online Coaching Enrollments (FY16) 2
30 835
Anti-tobacco Ad Recall
Anti-tobacco Ad Recall in the Past Month (2015)1 66.7% 70.6%

Bear River Health Department

17
 Working with Retailers to Reduce Youth Smoking

CUPHD continued to educate retailers about youth

access laws in Utah. Since 2001, illegal sales of
tobacco to underage youth in the Central Utah health
district have declined by 80%. In 2016, 2.7% of
retailers in the district sold tobacco or vape products
during compliance checks.

Smoke- and Vape-free City Parks

The Central Utah Public Health Department (CUPHD)

worked with the Millard High School Governor’s Youth
Council (GYC) and the Fillmore City Council to pass an
ordinance that prohibits both smoking and vaping in
Fillmore outdoor public venues. The ordinance includes
city-owned or operated parks and recreational facilities,
areas, or events.

Promoting Tobacco-free Worksites

CUPHD assisted Owen’s and Corning in Nephi with

adopting a tobacco-free worksite policy that applies
to employees as well as contractors and visitors.
To ensure compliance with the policy and promote
quitting, the company offered quit resources and free
Isabelle Ashby, NcKisha Ford, and Micha Welch from Sevier County provided
nicotine replacement products to employees who were education about raising the legal age of buying tobacco to 21 during the 2016
trying to quit. legislative session.

Tobacco Statistics
CUPHD STATE
Cigarette Smoking
Adult Cigarette Smoking (2015) 1 8.1% 9.1%
Youth Cigarette Smoking in Grades 8, 10, 12 (2015) 5
4.2% 3.4%
Pregnant Women Smoking (2014) 12
7.5% 4.2%
Use of Electronic Cigarettes and Smokeless Tobacco
Youth Experimentation with Electronic Cigarettes in Grades 8, 10, 12 (2015)5 22.0% 22.9%
Youth Use of Electronic Cigarettes in Grades 8, 10, 12 (2015)5 10.0% 10.5%
Adult Experimentation with Electronic Cigarettes (2014-2015) 1
12.9% 13.2%
Adult Use of Electronic Cigarettes (2013-2015) 1
3.3% 4.7%
Adult Use of Chewing Tobacco, Snuff, or Snus (2014-2015) 1
4.8% 2.9%
Secondhand Smoke Exposure
Adults Exposed to Secondhand Smoke Indoors or Outdoors in the Past Week (2015)2 25.1% 34.5%
Quit Service Utilization
Number of New Quit Line Registrations (FY16)2 127 4,681
Number of New Online Coaching Enrollments (FY16) 2
16 835
Anti-tobacco Ad Recall
Anti-tobacco Ad Recall in the Past Month (2015)1 69.7% 70.7%

Central Utah Public Health Department

18
 Working with Retailers to Reduce Youth Smoking

DCHD continued to educate retailers about youth

access laws in Utah. Since 2001, illegal sales of
tobacco to underage youth in Davis County have
declined by 58%. In 2016, 6.9% of retailers in
Davis County sold tobacco or vape products during
compliance checks.

Working with Youth Coalitions to Reduce Tobacco

and Electronic Cigarette Use

Davis County Health

Department (DCHD)
organized a visit of the
#NotTobaccosGuineaPig at
the Davis County Safe Kids
fair in order to discourage kids
from vaping. DCHD utilized
the #NotTobaccosGuineaPig
in tobacco cessation courses
taught in schools and other locations throughout Davis
County over the past year. Youth in Davis County are
encouraged to protect their health and not jeopardize
their future by engaging in unhealthy activities such as
tobacco use or vaping. #NotTobaccosGuineaPig at the Davis County Safe Kids Fair.

Tobacco Statistics
DCHD STATE
Cigarette Smoking
Adult Cigarette Smoking (2015)1 8.9% 9.1%
Youth Cigarette Smoking in Grades 8, 10, 12 (2015) 5
2.5% 3.4%
Pregnant Women Smoking (2014)12 2.7% 4.2%
Use of Electronic Cigarettes and Smokeless Tobacco
Youth Experimentation with Electronic Cigarettes in Grades 8, 10, 12 (2015)5 16.6% 22.9%
Youth Use of Electronic Cigarettes in Grades 8, 10, 12 (2015) 5
8.4% 10.5%
Adult Experimentation with Electronic Cigarettes (2014-2015) 1
13.3% 13.2%
Adult Use of Electronic Cigarettes (2013-2015)1 4.3% 4.7%
Adult Use of Chewing Tobacco, Snuff, or Snus (2014-2015) 1
2.2% 2.9%
Secondhand Smoke Exposure
Adults Exposed to Secondhand Smoke Indoors or Outdoors in the Past Week (2015)1 35.7% 34.5%
Quit Service Utilization
Number of New Quit Line Registrations (FY16)2 341 4,681
Number of New Online Coaching Enrollments (FY16)2 63 835
Anti-tobacco Ad Recall
Anti-tobacco Ad Recall in the Past Month (2015)1 68.1% 70.7%

Davis County Health Department

19
 Promoting Smoke-free Shopping

• LCoHD worked with The Gateway shopping center

S
to pass a policy that restricts outdoor smoking and
vaping to designated areas.

Improving Quit Services for Disparate Populations

The Salt Lake County Health Department (SLCoHD)

developed quit materials for refugee populations and
ensured that local healthcare providers had Spanish-
language quit kits to better assist Spanish speaking
tobacco users in their quit attempts.

Including Vape Products in School Tobacco Policies

SLCoHD assisted local school districts with updating

their tobacco-free policies to include electronic
cigarettes and other vape products.

Working with Retailers to Reduce Youth Smoking

SLCoHD continued to educate retailers about youth

access laws in Utah. Since 2001, illegal sales of
tobacco to underage youth in Salt Lake County have
declined by 52%. In 2016, 7.9% of retailers in Salt
Lake County sold tobacco or vape products during
Sign announcing new smoking and vaping regulations at The Gateway
compliance checks. shopping center.

Tobacco Statistics
SLCoHD STATE
Cigarette Smoking
Adult Cigarette Smoking (2015)1 9.8% 9.1%
Youth Cigarette Smoking in Grades 8, 10, 12 (2015)5 3.7% 3.4%
Pregnant Women Smoking (2014) 12
4.5% 4.2%
Use of Electronic Cigarettes and Smokeless Tobacco
Youth Experimentation with Electronic Cigarettes in Grades 8, 10, 12 (2015)5 27.9% 22.9%
Youth Use of Electronic Cigarettes in Grades 8, 10, 12 (2015) 5
12.3% 10.5%
Adult Experimentation with Electronic Cigarettes (2014-2015)1 15.1% 13.2%
Adult Use of Electronic Cigarettes (2013-2015)1 5.8% 4.7%
Adult Use of Chewing Tobacco, Snuff, or Snus (2014-2015) 1
2.7% 2.9%
Secondhand Smoke Exposure
Adults Exposed to Secondhand Smoke Indoors or Outdoors in the Past Week (2015)1 34.9% 34.5%
Quit Service Utilization
Number of New Quit Line Registrations (FY16)2 1,845 4,681
Number of New Online Coaching Enrollments (FY16) 2
379 835
Anti-tobacco Ad Recall
Anti-tobacco Ad Recall in the Past Month (2015)1 71.8% 70.7%

Salt Lake County Health Department

20
 Working with Retailers to Reduce Youth Smoking

• In FY16, SJPHD conducted 22 compliance checks

in local tobacco retail outlets. 27.3% of tobacco
retailers sold tobacco or vape products during
these compliance checks.

Developing a Youth Coalition to Reduce Tobacco

Use

• The San Juan Public Health Department (SJPHD)

has started to develop a youth coalition to assist
with tobacco prevention messages and tobacco-free
policies.

Tobacco Statistics
SJPHD STATE
Cigarette Smoking
Adult Cigarette Smoking (2015)1 ** 9.1%
Youth Cigarette Smoking in Grades 8, 10, 12 (2015) 5
2.5% 3.4%
Pregnant Women Smoking (2014)12 n/a 4.2%
Use of Electronic Cigarettes and Smokeless Tobacco
Youth Experimentation with Electronic Cigarettes in Grades 8, 10, 12 (2015)5 14.8% 22.9%
Youth Use of Electronic Cigarettes in Grades 8, 10, 12 (2015) 5
7.0% 10.5%
Adult Experimentation with Electronic Cigarettes (2014-2015) 1
** 13.2%
Adult Use of Electronic Cigarettes (2013-2015)1 ** 4.7%
Adult Use of Chewing Tobacco, Snuff, or Snus (2014-2015) 1
** 2.9%
Secondhand Smoke Exposure
Adults Exposed to Secondhand Smoke Indoors or Outdoors in the Past Week (2015)1 24.1% 34.5%
Quit Service Utilization
Number of New Quit Line Registrations (FY16)2 19 4,681
Number of New Online Coaching Enrollments (FY16)2 1 835
Anti-tobacco Ad Recall
Anti-tobacco Ad Recall in the Past Month (2015)1 77.0% 70.7%
Note: San Juan Public Health District data are only available for 2015.
* *These estimates have been suppressed because 1) The relative standard error is greater than 50% or when the relative standard error can’t be
determined; 2) the observed number of events is very small and not appropriate for publication, or 3) it could be used to calculate the number in a cell
that has been suppressed.

San Juan Public Health Department

21
Kick Butts Day Tobacco Prevention
Skateboarders and BMX riders were #NotTobaccosGuineaPig at the ninth annual
Rule the Rocks event in Price and Moab.
For Kick Butts Day, Southeast Utah Health Department
(SEUHD) conducted its fourth annual Don’t Be a Butt
Head Tobacco Kills 5K/10K run in Price. Among the 223
participants was a woman who had quit after smoking
for 40 years.

Working with Retailers to Reduce Youth Smoking

SEUHD continued to educate retailers about youth

access laws in Utah. Since 2001, illegal sales of
tobacco to underage youth in Southeast Utah health
district have declined by 33%. In 2016, 8.2% of
retailers in the district sold tobacco or vape products
during compliance checks. Marty from Price quit smoking with the help of the Southeast Utah Health
Department.

Tobacco Statistics
SEUHD STATE
Cigarette Smoking
Adult Cigarette Smoking (2015)1 20.0% 9.1%
Youth Cigarette Smoking in Grades 8, 10, 12 (2015) 5
8.2% 3.4%
Pregnant Women Smoking (2014) 12
9.1% 4.2%
Use of Electronic Cigarettes and Smokeless Tobacco
Youth Experimentation with Electronic Cigarettes in Grades 8, 10, 12 (2015)5 32.0% 22.9%
Youth Use of Electronic Cigarettes in Grades 8, 10, 12 (2015) 5
15.1% 10.5%
Adult Experimentation with Electronic Cigarettes (2014-2015) 1
20.3% 13.2%
Adult Use of Electronic Cigarettes (2013-2015) 1
** 4.7%
Adult Use of Chewing Tobacco, Snuff, or Snus (2014-2015) 1
6.7% 2.9%
Secondhand Smoke Exposure
Adults Exposed to Secondhand Smoke Indoors or Outdoors in the Past Week (2015)1 39.2% 34.5%
Quit Service Utilization
Number of New Quit Line Registrations (FY16)2 180 4,681
Number of New Online Coaching Enrollments (FY16) 2
30 835
Anti-tobacco Ad Recall
Anti-tobacco Ad Recall in the Past Month (2015)1 74.0% 70.7%
Note: In 2015 San Juan County formed a separate health department. Data from years prior to 2015 include San Juan County. Data from
2015 do not include San Juan County.
* *This estimate has been suppressed because 1) The relative standard error is greater than 50% or when the relative standard error can’t be determined; 2) the observed number of events
is very small and not appropriate for publication, or 3) it could be used to calculate the number in a cell that has been suppressed.

Southeast Utah Health Department

22
 Reducing Access to Tobacco Products

Southwest Utah Public Health Department (SWUPHD)

staff worked with Kane County, Kanab City, and
Orderville to pass zoning ordinances banning Tobacco
Specialty Business (smoke/vape shops) from their
cities. Washington and Cedar City have passed six
month moratoriums on Tobacco Specialty Business
licenses.

Working with Retailers to Reduce Youth Smoking

Working with Youth Coalitions to Reduce Tobacco
SWUPHD continued to educate retailers about youth
and Electronic Cigarette Use
access laws in Utah. Since 2001, illegal sales of
tobacco to underage youth in the Southwest Utah
Members of Washington County’s youth coalition
health districthave declined by 85%. In 2016, 3.4% of
have worked diligently in creating partnerships with
retailers in the district sold tobacco or vape products
community organizations to reduce tobacco use. Their
during compliance checks.
work with homeless shelters and other community
groups that serve populations that are disparately
affected by tobacco use will be highlighted in a Truth
Initiative project video.

Kane Community Youth Coalition’s leadership

attended the National Youth Leadership Institute
with Community Anti-Drug Coalitions of America in
Washington, D.C. this year. While in D.C. they were
able to meet with legislators to discuss the drastic
increase in electronic cigarette use in Southwest Utah.
Washington County youth coalition members meet with
Congressman Stewart.

Tobacco Statistics
SWUPHD STATE
Cigarette Smoking
Adult Cigarette Smoking (2015)1 10.3% 9.1%
Youth Cigarette Smoking in Grades 8, 10, 12 (2015) 5
3.7% 3.4%
Pregnant Women Smoking (2014)12 5.2% 4.2%
Use of Electronic Cigarettes and Smokeless Tobacco
Youth Experimentation with Electronic Cigarettes in Grades 8, 10, 12 (2015)5 24.0% 22.9%
Youth Use of Electronic Cigarettes in Grades 8, 10, 12 (2015) 5
11.2% 10.5%
Adult Experimentation with Electronic Cigarettes (2014-2015)1 13.5% 13.2%
Adult Use of Electronic Cigarettes (2013-2015)1 4.2% 4.7%
Adult Use of Chewing Tobacco, Snuff, or Snus (2014-2015) 1
2.4% 2.9%
Secondhand Smoke Exposure
Adults Exposed to Secondhand Smoke Indoors or Outdoors in the Past Week (2015)1 36.0% 34.5%
Quit Service Utilization
Number of New Quit Line Registrations (FY16)2 316 4,681
Number of New Online Coaching Enrollments (FY16)2 50 835
Anti-tobacco Ad Recall
Anti-tobacco Ad Recall in the Past Month (2015)1 71.0% 70.7%

Southwest Utah Public Health Department

23
 Working with Retailers to Reduce Youth Smoking

Summit County Health Department continued to

educate retailers about youth access laws in Utah.
Since 2001, illegal sales of tobacco to underage youth
in Summit County have declined by 51%. In 2016,
11.8% of retailers in Summit County sold tobacco or
vape products during compliance checks.

ON IT
DEPENDS
FUTURE
OUR
Working with Youth Coalitions to Reduce Tobacco
and Electronic Cigarette Use

South Summit High School peer leaders held their first

“Opinion Leaders” dinner to facilitate a discussion
on community challenges and the rise of electronic
cigarette use among youth. Presentations were given
by the youth group to local mayors, Summit County HELP US
KEEP
Council members, school leaders, and state legislators UTAH’S
for the local areas. Representative Powell presented YOUTH
TOBACCO-
information on tobacco bills he was sponsoring for the FREE
2016 legislative session and local leaders discussed
ways in which they could become involved in their #NotTobaccosGuineaPig f
respective communities.

Tobacco Statistics
SCHD STATE
Cigarette Smoking
Adult Cigarette Smoking (2015)1 8.4%* 9.1%
Youth Cigarette Smoking in Grades 8, 10, 12 (2015) 5
2.9% 3.4%
Pregnant Women Smoking (2014) 12
4.1% 4.2%
Use of Electronic Cigarettes and Smokeless Tobacco
Youth Experimentation with Electronic Cigarettes in Grades 8, 10, 12 (2015)5 20.8% 22.9%
Youth Use of Electronic Cigarettes in Grades 8, 10, 12 (2015)5 9.3% 10.5%
Adult Experimentation with Electronic Cigarettes (2014-2015) 1
6.6% 13.2%
Adult Use of Electronic Cigarettes (2013-2015) 1
2.3%* 4.7%
Adult Use of Chewing Tobacco, Snuff, or Snus (2014-2015) 1
2.8% 2.9%
Secondhand Smoke Exposure
Adults Exposed to Secondhand Smoke Indoors or Outdoors in the Past Week (2015)1 31.5% 34.5%
Quit Service Utilization
Number of New Quit Line Registrations (FY16)2 39 4,681
Number of New Online Coaching Enrollments (FY16) 2
2 835
Anti-tobacco Ad Recall
Anti-tobacco Ad Recall in the Past Month (2015)2 75.5% 70.7%
* This estimate has a relative standard error of >30% and does not meet UDOH standards for reliability.

Summit County Health Department

24
 Working with Retailers to Reduce Youth Smoking

TCHD continued to educate retailers about youth

access laws in Utah. Since 2001, illegal sales of
tobacco to underage youth in Tooele County have
declined by 45%. In 2016, 12.8% of retailers in
Promoting Tobacco-free Worksites and Healthcare Tooele County sold tobacco or vape products during
Centers compliance checks.

The Tooele County Health Department (TCHD) assisted

20 local worksites with passing tobacco-free policies.
TCHD specifically focused on the restaurant industry,
where employees tend to have a higher tobacco use
rates and restaurants may not have a comprehensive
worksite policy.

TCHD also helped Mountain West Medical Center

(MWMC) with adopting a tobacco-free campus. The
Tooele County “Most Don’t” Prevention Advocacy
Coalition (PAC) Youth Group helped MWMC with their
tobacco-free policy kickoff event during the Great
American Smoke Out.

Working with Youth to Reduce Tobacco Use

Members of Tooele County’s “Most Don’t” PAC Youth educate peers about not
The Tooele County “Most Don’t” PAC Youth Group becoming “tobacco’s guinea pig” at a Prevention Dimensions Day Bees Game.
shared tobacco prevention messages with their peers
during Prevention Dimensions Day.

Tobacco Statistics
TCHD STATE
Cigarette Smoking
Adult Cigarette Smoking (2015)1 14.6% 9.1%
Youth Cigarette Smoking in Grades 8, 10, 12 (2015) 5
4.4% 3.4%
Pregnant Women Smoking (2014) 12
7.3% 4.2%
Use of Electronic Cigarettes and Smokeless Tobacco
Youth Experimentation with Electronic Cigarettes in Grades 8, 10, 12 (2015)5 26.1% 22.9%
Youth Use of Electronic Cigarettes in Grades 8, 10, 12 (2015) 5
13.4% 10.5%
Adult Experimentation with Electronic Cigarettes (2014-2015)1 13.0% 13.2%
Adult Use of Electronic Cigarettes (2013-2015)1
4.2% 4.7%
Adult Use of Chewing Tobacco, Snuff, or Snus (2014-2015) 1
3.0% 2.9%
Secondhand Smoke Exposure
Adults Exposed to Secondhand Smoke Indoors or Outdoors in the Past Week (2015)1 31.6% 34.5%
Quit Service Utilization
Number of New Quit Line Registrations (FY16)2 103 4,681
Number of New Online Coaching Enrollments (FY16) 2
27 835
Anti-tobacco Ad Recall
Anti-tobacco Ad Recall in the Past Month (2015)1 76.0% 70.7%

Tooele County Health Department

25
 Working with Retailers to Reduce Youth Smoking

TriCounty Health Department (TRCHD) continued to

educate retailers about youth access laws in Utah.
Since 2001, illegal sales of tobacco to underage youth
in the health district have declined by 18%. In 2016,
15.1% of retailers in the health district sold tobacco or
vape products during compliance checks.

Helping Pregnant Women to Quit Smoking

Working with Youth Coalitions to Reduce Tobacco
Use TRCHD is offering the Breathe Tobacco-Free, Baby
and Me program to help pregnant mothers and
The Duchesne County Youth Coalition educated the their significant others to quit smoking. Participants
public and youth in schools throughout the community receive diaper vouchers each month, up to one year
about the dangers of electronic cigarettes. The youth postpartum, and the benefit of a healthy home and
saw a need for grassroots efforts to encourage healthy, a healthy family. In 2016, 33 mothers enrolled in the
smoke-free communities and protect their peers from Breathe Tobacco-Free, Baby and Me Program.
the dangers of nicotine products.

For National Kick Butts Day, a day for youth across the
nation to rally together against big tobacco companies, “My motivation to quit was knowing
my baby deserves the best chance.”
local youth were asked to create and sign posters to - Janessa, Roosevelt.
advocate for smoke-free community parks. The youth
Janessa quit with the help of the
shared their posters at city council meetings. As a TriCounty Health Department Breathe
result, Duchesne County is drafting smoke-free policies Tobacco-Free, Baby and Me program.

for the Duchesne County Centennial Event Center as

well as three local parks.

Tobacco Statistics
TRCHD STATE
Cigarette Smoking
Adult Cigarette Smoking (2015)1 10.9% 9.1%
Youth Cigarette Smoking in Grades 8, 10, 12 (2015) 5
5.2% 3.4%
Pregnant Women Smoking (2014) 12
13.7% 4.2%
Use of Electronic Cigarettes and Smokeless Tobacco
Youth Experimentation with Electronic Cigarettes in Grades 8, 10, 12 (2015)5 22.3% 22.9%
Youth Use of Electronic Cigarettes in Grades 8, 10, 12 (2015)5 14.5% 10.5%
Adult Experimentation with Electronic Cigarettes (2014-2015) 1
17.6% 13.2%
Adult Use of Electronic Cigarettes (2013-2015)1
4.1% 4.7%
Adult Use of Chewing Tobacco, Snuff, or Snus (2014-2015) 1
10.3% 2.9%
Secondhand Smoke Exposure
Adults Exposed to Secondhand Smoke Indoors or Outdoors in the Past Week (2015)1 33.6% 34.5%
Quit Service Utilization
Number of New Quit Line Registrations (FY16)2 138 4,681
Number of New Online Coaching Enrollments (FY16) 2
29 835
Anti-tobacco Ad Recall
Anti-tobacco Ad Recall in the Past Month (2015)1 72.0% 70.7%

TriCounty Health Department

26
 Improving Cessation Services for High Risk Youth

To make quitting tobacco easier and more accessible,

UCHD provides cessation classes at alternative schools
as part of their regular school schedule.

Working with Retailers to Reduce Youth Smoking

Smoke- and Vape-free City Parks UCHD continued to educate retailers about youth
access laws in Utah. Since 2001, illegal sales of
Utah County Health Department (UCHD) worked tobacco to underage youth in Utah County have
with 10 local cities to update their policies to prohibit declined by 42%. In 2016, 6.2% of retailers in
the use electronic cigarettes in city parks. The cities Utah County sold tobacco or vape products during
include Alpine, Eagle Mountain, Highland, Lehi, Orem, compliance checks.
Pleasant Grove, Santaquin, Salem, Spanish Fork, and
Springville. UCHD provided new signs for the cities and
community education for the updated policies.

Working with Youth Coalitions to Reduce Tobacco

Use

For Kick Butt’s Day, a national day of activism to stand

up against Big Tobacco, UCHD held a talent show for
youth to creatively express their reasons why they
pledge to stay tobacco- and nicotine-free.

During the 2016 legislative session, Outrage! youth and

college mentors spent a day at the Capitol to educate Members of Utah County’s Outrage! youth coalition provide a tobacco-free
legislators about the benefits of raising the tobacco parks policy sign to Eagle Mountain.
purchase age to 21.

Tobacco Statistics
UCHD STATE
Cigarette Smoking
Adult Cigarette Smoking (2015)1 4.5% 9.1%
Youth Cigarette Smoking in Grades 8, 10, 12 (2015) 5
2.7% 3.4%
Pregnant Women Smoking (2014)12 1.6% 4.2%
Use of Electronic Cigarettes and Smokeless Tobacco
Youth Experimentation with Electronic Cigarettes in Grades 8, 10, 12 (2015)5 15.7% 22.9%
Youth Use of Electronic Cigarettes in Grades 8, 10, 12 (2015) 5
7.6% 10.5%
Adult Experimentation with Electronic Cigarettes (2014-2015) 1
8.4% 13.2%
Adult Use of Electronic Cigarettes (2013-2015)1 2.4% 4.7%
Adult Use of Chewing Tobacco, Snuff, or Snus (2014-2015) 1
2.5% 2.9%
Secondhand Smoke Exposure
Adults Exposed to Secondhand Smoke Indoors or Outdoors in the Past Week (2015)1 32.7% 34.5%
Quit Service Utilization
Number of New Quit Line Registrations (FY16)2 454 4,681
Number of New Online Coaching Enrollments (FY16)2 108 835
Anti-tobacco Ad Recall
Anti-tobacco Ad Recall in the Past Month (2015)1 66.7% 70.7%

Utah County Health Department

27
 nity Coalition commend the Wasatch County Board of
Health for creating community laws and norms that
improve health outcomes and decrease tobacco use.

Supporting Tobacco Cessation at a Local Treatment

Center

Wasatch County Health Department (WCHD) provided

provided waytoquit.org resources to three local residen-
tial treatment centers. As a result, WCHD assisted one
center in implementing tobacco cessation as a man-
datory part of all residents’ treatment plans. Research
shows that tobacco cessation improves the prospects Members of WCHD GYC Outrage!, Caring Community Coalition, and the Wasatch
County Board of Health after vote to include e-cigarettes in local ordinance.
of recovery from mental illness and addiction.

Smoke- and Vape-free City Parks

Working with Retailers to Reduce Youth Smoking
After hearing comments from members of the WCHD
Governor’s Youth Council (GYC) Outrage! Youth Group WCHD continued to educate retailers about youth
and the Caring Community Coalition, the Wasatch access laws in Utah. In 2016, 14.0% of retailers in
County Board of Health voted to include electronic cig- Wasatch County sold tobacco or vape products during
arettes in the local Regulation on Smoking in Outdoor compliance checks. The rate of illegal sales remained
Public Places. GYC Outrage! and the Caring Commu- unchanged compared to 2001.

Tobacco Statistics
WCHD STATE
Cigarette Smoking
Adult Cigarette Smoking (2015) 1 7.2%* 9.1%
Youth Cigarette Smoking in Grades 8, 10, 12 (2015) 5
2.8% 3.4%
Pregnant Women Smoking (2014) 12
4.3% 4.2%
Use of Electronic Cigarettes and Smokeless Tobacco
Youth Experimentation with Electronic Cigarettes in Grades 8, 10, 12 (2015)5 18.1% 22.9%
Youth Use of Electronic Cigarettes in Grades 8, 10, 12 (2015) 5
7.5% 10.5%
Adult Experimentation with Electronic Cigarettes (2014-2015) 1
8.5% 13.2%
Adult Use of Electronic Cigarettes (2013-2015) 1
2.5%* 4.7%
Adult Use of Chewing Tobacco, Snuff, or Snus (2014-2015) 1
6.8% 2.9%
Secondhand Smoke Exposure
Adults Exposed to Secondhand Smoke Indoors or Outdoors in the Past Week (2015)1 30.0% 34.5%
Quit Service Utilization
Number of New Quit Line Registrations (FY16)2 32 4,681
Number of New Online Coaching Enrollments (FY16) 2
5 835
Anti-tobacco Ad Recall
Anti-tobacco Ad Recall in the Past Month (2015)1 68.8% 70.7%
* These estimates have a relative standard error of >30% and do not meet UDOH standards for reliability.

Wasatch County Health Department

28
 Collaborating with Eagle Scouts to Update Tobac-
co-free Signs in Local Parks

WMHD worked with the local Boy Scout Office to

create two Eagle Scout Projects consisting of replacing
faded or outdated tobacco-free park signage. As part
of these projects, scouts replaced more than 40 signs.
WMHD staff distributed an additional 70 Utah Indoor
Clean Air Act stickers and 30 new “No Smoking” signs
to 13 city offices.
Educating Schools about the Rise in Youth E-ciga-
rette Experimentation and Use

Weber-Morgan Health Department (WMHD) worked

with Weber, Ogden, and Morgan school districts to
educate administrators, teachers, and staff about elec-
tronic cigarettes and other vape products. WMHD staff
reached 834 educators with presentations and followed
up with community and parent education. The feedback
from the school community was extremely positive.

Working with Retailers to Reduce Youth Smoking

Eagle Scout Landon

WMHD continued to educate retailers about youth Obray of North Ogden
access laws in Utah. Since 2001, illegal sales of displays a tobacco-free
sign he installed at a
tobacco to underage youth in Weber-Morgan health local city park.
district have declined by 63%. In 2016, 6.1% of
retailers in the district sold tobacco or vape products
during compliance checks.

Tobacco Statistics
WMHD STATE
Cigarette Smoking
Adult Cigarette Smoking (2015)1 13.3% 9.1%
Youth Cigarette Smoking in Grades 8, 10, 12 (2015) 5
4.3% 3.4%
Pregnant Women Smoking (2014)12 6.2% 4.2%
Use of Electronic Cigarettes and Smokeless Tobacco
Youth Experimentation with Electronic Cigarettes in Grades 8, 10, 12 (2015)5 31.6% 22.9%
Youth Use of Electronic Cigarettes in Grades 8, 10, 12 (2015) 5
15.0% 10.5%
Adult Experimentation with Electronic Cigarettes (2014-2015) 1
17.4% 13.2%
Adult Use of Electronic Cigarettes (2013-2015)1 8.4% 4.7%
Adult Use of Chewing Tobacco, Snuff, or Snus (2014-2015) 1
3.4% 2.9%
Secondhand Smoke Exposure
Adults Exposed to Secondhand Smoke Indoors or Outdoors in the Past Week (2015)1 37.8% 34.5%
Quit Service Utilization
Number of New Quit Line Registrations (FY16)2 413 4,681
Number of New Online Coaching Enrollments (FY16) 2
85 835
Anti-tobacco Ad Recall
Anti-tobacco Ad Recall in the Past Month (2015)1 76.5% 70.7%

Weber-Morgan Health Department

29
TOBACCO PREVENTION AND CONTROL PROGRAM PARTNERS

• American Cancer Society • Utah Department of Health, Bureau

• American Heart Association of Epidemiology
• American Lung Association • University of Utah
• Association for Utah Community Health • University of Utah Health Care
• Behavioral Risk Factor Surveillance System • Urban Indian Center of Salt Lake
• Bear River Health Department • Utah Chiefs of Police Association
• Centers for Disease Control and Prevention • Utah County Health Department
• Central Utah Public Health Department • Utah Dental Association
• Centro Hispano • Utah Department of Environmental Quality
• Communidades Unidas • Utah Department of Health, Health Clinics
• Commission on Criminal and of Utah/Family Dental Plans
Juvenile Justice • Utah Department of Health, Oral
• Davis County Health Department Health Program
• Harambee • Utah Division of Substance Abuse and
• HealthInsight Mental Health
• Huntsman Cancer Institute • Utah Health Plan Partnership
• Intermountain Healthcare • Utah Hospital Association
• March of Dimes • Utah Indian Health Advisory Board
• Optum • Utah Juvenile Court
• Pediatricians Against Secondhand Smoke • Utah Medicaid
• Primary Children’s Hospital • Utah Medical Association
• Queen Center • Utah Office of Health Disparities Reduction
• R & R Partners • Utah Office of the Attorney General
• Research Triangle Institute • Utah Parent Teacher Association
• Salt Lake County Health Department • Utah Prevention Advisory Council
• Southeast Utah Health Department • Utah Pride Center
• Southwest Utah Public Health Department • Utah Society for Respiratory Care
• Summit County Health Department • Utah State Office of Education
• Tooele County Health Department • Utah State Tax Commission
• Tri-County Health Department • Utah Tobacco-Free Alliance
• Utah Department of Health, Division of • Wasatch County Health Department
Maternal and Child Health • Weber-Morgan Health Department

Tobacco Prevention and Control Program Partners

30
REFERENCES
1 Utah Department of Health. Behavioral Risk Factor 7 Stanford School of Medicine. (2015). Stanford
Surveillance System (BRFSS). Salt Lake City: Utah Research into the Impact of Tobacco Advertising.
Department of Health, Center for Health Data. Note: Retrieved August 12, 2015 from http://tobacco.
Recent changes to the BRFSS survey methodology stanford.edu/tobacco_main/ecigs.php.
provide more accurate estimates of the burden
of smoking nationwide and in Utah (landline and 8 Leventhal, A.M., String, D. R., Kirkpatrick, M.G. et
cell phone (LLCP) inclusion; raking used for data al. Association of Electronic Cigarette Use With
weighting). The 2009 to 2015 rates of smoking are Initiation of Combustible Tobacco Product Smoking
not comparable to the rates published before 2009 in Early Adolescence. The Journal of the American
(no cell phone inclusion; post-stratification used for Medical Association. August 18, 2015, Vol 314, No. 7.
data weighting).
9 Campaign for Tobacco-Free Kids. State -Specific
2 Tobacco Prevention and Control Program. Utah Estimates of Tobacco Company Marketing
Tobacco Quit Line and online coaching program Expenditures 1998-2013. Retrieved October 4,
annual reports, FY16. Salt Lake City: Utah 2016 from http://www.tobaccofreekids.org/research/
Department of Health. Note: The numbers listed on factsheets/pdf/0271.pdf.
the local health department pages include tobacco
users only. The statewide numbers listed on the 10 Campaign for Tobacco-Free Kids. State Cigarette Tax
quit page include tobacco users and others who Rates and Ranks, Date of Last Increase, Annual Pack
registered for services to help tobacco users quit. Sales and Revenues, and Related Data. Retrieved
October 4, 2016 from https://www.tobaccofreekids.
3 Fiore, M.C., Bailey, W.C., Cohen, S.J., et al. org/research/factsheets/pdf/0099.pdf.
(2000). Treating Tobacco Use and Dependence. Clin-
ical Practice Guideline. U.S. Department of Human 11 National Center for Chronic Disease Prevention and
Services, Public Health Service (PHS). Health Promotion. (2010). State Tobacco Activities
Tracking and Evaluation (STATE) System. Atlanta, GA:
4 England, L. et al. Nicotine and the Developing U.S. Department of Health and Human Services.
Human: A Neglected Element of the E-cigarette Retrieved August 10, 2015 from http://nccd.cdc.
gov/STATESystem/rdPage.aspx?rdReport=OSH_STATE.
Debate. American Journal of Preventive Medicine
Highlights&rdRequestForwarding=Form.
Volume 49, Issue 2, August 2015, pp. 286–293.
12 Utah Birth Certificate Database. Retrieved
5 Tobacco Prevention and Control Program. Prevention
September 26, 2016 from Utah Department of
Needs Assessment Tobacco Questions, SHARP
Health, Center for Health Data, Indicator-Based
SURVEY 2013 and 2015. Salt Lake City: Utah
Information System for Public Health at http://ibis.
Department of Health.
health.utah.gov. Note: These smoking rates are based
on pregnancies that resulted in live births.
6 Orzechowski and Walker. (2015). The Tax Burden
on Tobacco - Historical Compilation. Volume
50. Arlington, Virginia: Orzechowski and Walker
Consulting.

References
31
 LIVE MORE.
LIVE TOBACCO-FREE.
FIND YOUR WAY TO QUIT.

32
EXHIBIT 3
 VAPING
UNREGULATED THC
IS DANGEROUS
TO YOUR HEALTH
A lung disease related to vaping unregulated
THC has recently hospitalized dozens of
Utahns and caused several deaths nationwide.
For more information, go to https://health.utah.gov/lung-disease-investigation
 VAPING
UNREGULATED THC
IS DANGEROUS
TO YOUR HEALTH
A lung disease related to vaping unregulated
THC has recently hospitalized dozens of
Utahns and caused several deaths nationwide.
For more information, go to https://health.utah.gov/lung-disease-investigation
EXHIBIT 4
 
Utah.gov Utah Department of Health Settings

(http://www.utah.gov)

(HTTPS://HEALTH.UTAH.GOV/)

 ( HT T P S : // HE A LT H .U TAH .GOV/ )  N EW S (H T T P S:// HE A LT H .UTA H .GOV/ NE W S) 
U TAH R ES ID EN T D I E S F RO M VAP I NG -R E LAT E D L UN G I N JURY ( HT T P S :// H E A LT H.U TA H.GOV/ F E AT URE D- N E WS /U TA H-
R E S I D EN T- D I E S - F ROM -VA P I NG- RE LAT E D- L UN G-I N JURY )

 ( H T T PS: //H E A LT H. U TA H.G OV/ F EAT U R E D - NE W S/ U DO H -TO - H OS T-P U B LI C- H E A RIN GS -O N - ME DI CA I D- E XPA N SI ON-
P ROP O S A L)

Utah Resident Dies from Vaping-related

Lung Injury
 OCTOBER 9, 2019 /
 FEATURED-NEWS (HTTPS://HEALTH.UTAH.GOV/CATEGORY/FEATURED-NEWS)

(Salt Lake City, UT) – The Utah Department of Health (UDOH) today con rmed a Salt Lake
County resident has died from a vaping-related lung injury. The individual was under the age of
30 and died at home without being hospitalized prior to their death. The UDOH Of ce of the
Medical Examiner made the nal determination as to the cause of death. Public health of cials
investigating the death have determined the individual vaped THC prior to their death. In
order to protect the identity of the deceased resident, no further information will be released.

“This death is a sad reminder of the severity of these unexplained illnesses,” said Dr. Angela
Dunn, UDOH state epidemiologist. “Based on what we know about this outbreak and what
may be contributing to it, our best advice to the public is to stop vaping products that contain
THC.”

As of this week, the UDOH has reported 76 cases of vaping-related lung injuries, with another
14 potential cases currently under investigation. More than 90 percent of these cases were
hospitalized, and many of them required treatment in intensive care units. Ninety-four percent
of Utah cases self-reported vaping THC products.  

For more information on the vaping-related lung injury outbreak visit

https://health.utah.gov/lung-disease-investigation (https://health.utah.gov/lung-disease-
investigation).

### 
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Tom Hudachko
(o) 801.538.6232
(m) 801.560.4649

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EXHIBIT 5
 rTfie 1Jyer Law §rouy
October 17,2019
'Attorneys at Law
(est. 1984) VIA EMAIL ONLY ([email protected])

Joseph Miner, MD, MSPH

c/o Stephanie Saperstein, Esq.
Utah Department of Health
PO Box 141000
Salt Lake City, UT 84114-1 000

RE: Request for Interim Stay of Emergency Rule R384-418-1, et seq.

Pending Review of Petition for: 1) Declaratory Order
Suspending/Staying Implementation, Enforcement and/or Application
of Emergency Administrative Rule R684-418-1, et seq.; and, 2) For
Amendment of Emergency Administrative Rule 384-418-1, et seq.

Dear Dr. Miner,

This letter is in follow up to my phone conversation with Stephanie

Saperstein, Esq., this afternoon regarding the Petition for: 1) Declaratory Order
Suspending/Staying Implementation, Enforcement and/or Application of Emergency
Administrative Rule R684-418-1, et seq.; and, 2) For Amendment of Emergency
Administrative Rule 384-418-1, et seq. (Petition). My office represents the
Petitioners incident to the filing of the Petition.

During my conversation with Ms. Saperstein, I requested that the Utah

Department of Health (UDOH) stay the Emergency Administrative Rule R684-418-
1, et seq. (Emergency Rule) until Wednesday, October 23,2019. Ms. Saperstein
informed me that you are the person with authority to stay/suspend implementation
of the Emergency Rule. Accordingly, I am directing this request to you via Ms.
Saperstein. Petitioners' requested stay will ensure the UDOH has sufficient time to
review the Petition with counsel (who I understand is out of the office tomorrow)
and determine whether to stay the Emergency Rule pending resolution of the
Petition. The Petition itself requests that UDOH suspend/stay the Emergency Rule
pending resolution of the Petition. However, given that the Petition is twenty (20)
pages and includes almost fifty (50) pages of exhibits, I wanted to restate Petitioner's
request for stay via separate communication.

I would be most appreciative if you could advise my office via written

communication as to whether UDOH will suspend/stay the Emergency Rule until
October 23, 2019, so that I can advise Petitioners whether the Emergency Ru1e will
go into effect on Monday, October 21,2019, and Petitioners can weigh whether to
seek relief in District Court.
<Dyer Law §roup PilC
'T'F.e Langton '}{ouse
648 'East 100 Soutii
Sa{t Lake City, 'Uta!i 84102 Benjamin . Dyer
Plume 8o1.363.sooo
'Fax 801.363.5051
Attorney for Petitioners
EXHIBIT 6
 Utah Department of Health
Executive Director’s Office
Joseph K. Miner, M.D., M.S.P.H., F.A.C.P.M.
Executive Director

Marc E. Babitz, M.D.

State of Utah Deputy Director
GARY R HERBERT Nate Checketts
Governor Deputy Director
Director, Medicaid and Health Financing
SPENCER J. COX
Lieutenant Governor

October 18, 2019

Benjamin R. Dyer
Dyer Law Group, PLLC
The Langston House
648 E 100 S
Salt Lake City, UT 84102

RE: October 17, 2019 Request for Interim Stay of

Emergency Rule R384-418

Dear Mr. Dyer,

I am in receipt of your letter through my attorney Stephanie Saperstein dated, October 17, 2019,
requesting an interim stay on the enforcement of Emergency Administrative Rule R384-418 until
October 23, 2019. Your request asks for an interim stay on enforcement so agency counsel could
have time to review your petition requesting a declaratory order suspending or staying
implementation and enforcement of the rule.

The Emergency Administrative Rule R384-418, became effective on its filing date of October 1,
2019, with an enforcement date of a week later of October 7, 2019, to allow general retailers time to
adjust to the new rule. After comments from general retailers concerning a reasonable time to
respond and conform to the rule, I postponed enforcement another two weeks to October 21, 2019.

Being in receipt of your October 17, 2019, petition for a Declaratory Order Suspending/Staying
Implementation of Emergency Administrative Rule R384-418, I will review and respond in as quick
and timely of a manner as possible. However, at this time in the setting of the outbreak of illnesses
associated with vaping along with the increasing youth vaping crisis, I see no reason to further
postpone the enforcement date for two more days to October 23, 2019.

Sincerely,

Joseph K. Miner, MD

288 North 1460 West, Box 141000 • Salt Lake City, UT 84114-1000
Telephone (801) 538-6111 • www.health.utah.gov