723 Vape, Inc. v. Allyson Taylor - Vapor Product Regulation Challenge

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April 3, 2026 Get Citation Alerts Download PDF Add Note

723 Vape, Inc. v. Allyson Taylor, in Her Official Capacity as Commissioner of the Kentucky Department of Alcoholic Beverage Control

Court of Appeals of Kentucky

• Citations: None known
• Docket Number: 2024-CA-1060
• Judges: McNeill

• Disposition: OPINION AFFIRMING

• Opinion

• Authorities (6)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Disposition

OPINION AFFIRMING

Combined Opinion

RENDERED: APRIL 3, 2026; 10:00 A.M.
TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals
NO. 2024-CA-1060-MR

723 VAPE, INC.; KENTUCKY HEMP
ASSOCIATION, INC.; KENTUCKY
VAPING RETAILERS
ASSOCIATION, INC. D/B/A
KENTUCKY SMOKE FREE
ASSOCIATION; OP MURSE
HOLDINGS, LLC; AND SMOKIN D’S
VAPOR AND LOUNGE LLC APPELLANTS

APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 24-CI-00374

ALLYSON TAYLOR, IN HER
OFFICIAL CAPACITY AS
COMMISSIONER OF THE
KENTUCKY DEPARTMENT OF
ALCOHOLIC BEVERAGE
CONTROL; COMMONWEALTH OF
KENTUCKY; AND MICHAEL G.
ADAMS, IN HIS OFFICIAL
CAPACITY AS KENTUCKY
SECRETARY OF STATE APPELLEES

OPINION
AFFIRMING

---

BEFORE: CALDWELL, MCNEILL, AND TAYLOR, JUDGES.

MCNEILL, JUDGE: This case arises from legislation enacted by the General

Assembly as House Bill 11 (“HB 11”). It was signed into law by the Governor and

became effective on January 1, 2025. The subject of HB 11 is vapor products

containing nicotine. It specifically permits the sale of the following types of

products: 1) those authorized by the federal Food and Drug Administration

(“FDA”), or 2) products for which the manufacturer has received an FDA “safe

harbor” certification. HB 11 also omits language from Kentucky statutes that

previously treated vapor products as distinct from nicotine products. As a result of

HB 11, some vendors were restricted in selling vapor products. They are

collectively referred to herein as Appellants.1

Appellants filed suit in Franklin Circuit Court contesting HB 11 as

violative of the Kentucky Constitution. Appellees are the Commonwealth of

Kentucky, Secretary of State Michael G. Adams, and the Commissioner of the

Kentucky Department of Alcoholic Beverage Control, Allyson Taylor. Secretary

Adams and Commissioner Taylor are represented in their official capacities.

The circuit court granted Appellees’ motion to dismiss for failure to

state a claim. Appellants appeal to this Court as a matter of right. For the

following reasons, we AFFIRM.

1
Appellants also include vaping industry trade groups.

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STANDARD OF REVIEW

“Since a motion to dismiss for failure to state a claim upon which

relief may be granted is a pure question of law, a reviewing court owes no

deference to a trial court’s determination; instead, an appellate court reviews the

issue de novo.” Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (citation omitted).

Accordingly, “the pleadings should be liberally construed in the light most

favorable to the plaintiff, all allegations being taken as true.” Id.

ANALYSIS

Appellants argue that dismissal was improper, and that HB 11 violates

Sections 51 and 2 of the Kentucky Constitution. Each provision will be discussed

in turn. Section 51 of the Kentucky Constitution states:

No law enacted by the General Assembly shall relate to
more than one subject, and that shall be expressed in the
title, and no law shall be revised, amended, or the
provisions thereof extended or conferred by reference to
its title only, but so much thereof as is revised, amended,
extended or conferred, shall be reenacted and published
at length.

Appellants generally argue that HB 11 violates Section 51 of the Kentucky

Constitution because, while titled “AN ACT relating to nicotine products,” it also

references “other substances” throughout the legislation. This includes

unauthorized products and non-nicotine vaping products. Therefore, Appellants

allege that this violated the “one subject” requirement of Section 51. However,

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Appellees correctly cite that, as a general matter, “if the title is sufficient to furnish

‘a clue to its contents,’ the constitutional provision is not violated.” Talbott v.

Laffoon, 79 S.W.2d 244, 247 (Ky. 1934) (citation omitted). See also

Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437, 443-44 (Ky. 1986).

In addressing this first argument, the circuit court reasoned as follows:

HB 11’s reference to “other substances” is not used in a
manner outside of the context of the bill, but rather to
logically indicate what is unauthorized. The Court agrees
with [Appellees] that what is unauthorized is germane
and naturally connected to what is authorized—specific
nicotine vapor products. It is reasonable and practical to
include both authorized and unauthorized products in a
bill and the inclusion of “unauthorized products” is not
“distinct and wholly disconnected.” Grayson Cnty. Bd.
Of Edu. [v.] Casey, 157 S.W.3d 201, 208 (Ky. 2005).
The purpose of Section 51’s title and one (1) subject
requirement is to prevent “surprise and fraud.” Id.
Because the title “furnish[es] general notification of the
general subject in the act,” HB 11 does not violate
Section 51 of the Kentucky Constitution. Collins, 709
S.W.2d at 443.

In support of their arguments on appeal, Appellants provide an interesting and

meticulously cited history of the vapor industry, its products and concerns.

However, Appellants have not presented this Court with any binding legal

authority that would necessitate reversal. Therefore, in consideration of the

arguments and authority presented, we affirm on this issue.

Section 2 of the Kentucky Constitution states that “[a]bsolute and

arbitrary power over the lives, liberty and property of freemen exists nowhere in a

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republic, not even in the largest majority.” Appellants allege that HB 11 is

arbitrary and thus violates Section 2 of the Kentucky Constitution and the Due

Process Clause of the Fourteenth Amendment to the United States Constitution.2

In addressing this argument, the circuit court reasoned as follows:

In applying Section 2, the Kentucky Supreme
Court has held that “[w]hatever is contrary to democratic
ideals, customs and maxims is arbitrary.” Kentucky Milk
Marketing v. Kroger Co., 691 S W 2d 893, 899 (Ky.
1985). “Likewise, whatever is essentially unjust and
unequal or exceeds the reasonable and legitimate
interests of the people is arbitrary.” Id. “When
economic and business rights are involved, rather than
fundamental rights, substantive due process requires that
a statute be rationally related to a legitimate state
objective.” Stephens v State Farm Mutual Automobile
Ins. Co., 894 S.W.2d 624, 627 (Ky. 1995).

....

[T]he Court holds that HB 11 does not violate
Section 2 of the Kentucky Constitution or the Due
Process Clause of the Fourteenth Amendment because,
HB 11 is not arbitrary and the General Assembly’s
decision to permit only the sale of FDA approved
nicotine vapor products or products granted a safe harbor
certification by the FDA is related to a legitimate state

2
Appellants specifically argue that HB 11 violates Section 2 because it requires compliance
with a non-existent standard. More precisely, Appellants allege that “no FDA regulatory
pathway exists for vaping products which either do not contain nicotine, contain hemp-derived or
marijuana-derived cannabinoids, or substances like Nixodine for which no FDA regulatory
pathway exists.” In addition to potential federal preemption concerns, Appellants do not provide
any additional details regarding this specific allegation or explain what legal remedy this Court
may lawfully impose to cure this alleged injury. And to the extent that the Fourteenth
Amendment to the United States Constitution provides any additional or different basis for
argument or remedy than does Section 2, it was either not specifically addressed by the trial
court or is otherwise insufficiently developed in the present appeal.

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interest and is well within the scope of the General
Assembly’s police power over the health and safety of
the Commonwealth’s citizens.

The court’s reasoning is sound. And the case law advanced by Appellants in

support of their argument here is tangential and unpersuasive. E.g., Lawrence v.

Pelton., 413 F. Supp. 3d 701, 714 (W.D. Mich. 2019); and Planned Parenthood

Great Northwest v. Cameron, 603 F. Supp. 3d 501, 517-18 (W.D. Ky. 2022). See

also Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana & Kentucky,

Inc. v. Cameron, No. 22-5832, 2023 WL 3620977, at *3 (6th Cir. May 24, 2023)

(vacating the district court’s injunction orders and remanding to the district court to

dismiss as moot). In the absence of binding legal authority to the contrary, reversal

is not required. Therefore, in consideration of the arguments, authority, and

supplemental case law filed by Appellants, we affirm on this issue.

CONCLUSION

Based on the foregoing, the Franklin Circuit Court’s dismissal order is

hereby AFFIRMED.

ALL CONCUR.

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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:

J. Gregory Troutman Russell Coleman
Louisville, Kentucky Attorney General of Kentucky

Matthew F. Kuhn
John H. Heyburn
Assistant Attorneys General
Frankfort, Kentucky

Jennifer Scutchfield
Frankfort Kentucky

Jacob C. Walbourn
T. Chad Thompson
Frankfort, Kentucky

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