A Senate bill that was signed into law by Gov. Andy Beshear late last month aims to further regulate the sale of tobacco, nicotine and vapor products in the Commonwealth and levy stiff penalties against those who do not abide by the newly established guidelines. However, the actual implementation of the law, as well as others, could be in question after the passage of a House Bill that the Governor is calling unconstitutional.
SB 100 was sponsored by three Republican senators – Jimmy Higdon (14th District), Greg Elkins (28th District) and Stephen Meredith (5th District). It was introduced in the Senate on Feb. 7 and was reported favorably by the Licensing and Occupations Committee on Feb. 12.
The summary of the original bill makes several recommendations, including:
• Create new sections of the Kentucky Revised Statutes (KRS) to create the Division of Tobacco, Nicotine, and Vapor Product Licensing within the Department of Beverage Control.
• Give department investigators the authority to inspect any premise where alternative nicotine products, tobacco products, or vapor products are sold without obtaining a search warrant.
• Require any retailer selling alternative nicotine, tobacco, or vapor products to obtain a mandatory license issued by the department.
• Establish penalties for any retailers and store clerks who sell these products to individuals under the age of 21.
• Amend KRS to prohibit a distributor from distributing these products to any retailer whose license has been revoked.
• Amend KRS to allocate 100% of the license and application fees to the department.
• Allocate 50% of the fines collected to go toward a youth program that educates on the dangers associated with vaping and tobacco use.
• Require the department to develop and maintain a noncompliance database and reporting system.
• Prohibit a distributor from distributing these products to any retailer that has been placed on the tobacco noncompliance database and reporting system.
• Amend KRS to establish conditions upon which a person under the age of 21 may be required to perform community service or attend a tobacco cessation program.
The bill went through multiple readings before eventually getting passed in the Senate on Feb. 26 with a vote of 33-3. It passed with a committee substitute that prohibits a wholesaler from providing vapor products to an unlicensed retailer and allows for a licensee to request a hearing within 30 days of the revocation of a license. The substitute also requests the removal of references to the tobacco noncompliance database and reporting system, directs the department to make a list of licensees available on its website, and amends the fines for retailers that sell unauthorized vapor products. Finally, it directs the Department for Public Health to administer a youth program that targets the dangers of vapor products.
SB 100 also retained a Senate floor amendment that removes penalties for a retail store clerk who sells unauthorized vapor products, prohibits the sale of nitrous oxide to anyone under the age of 21, and prohibits the sale of nitrous oxide to any retail establishment holding a tobacco, nicotine, or vapor product license issued by the department.
The bill made its way to the House of Representatives, where the Licensing, Occupations, and Administrative Regulations Committee added another substitute that asked for a definition of the term “authorized nicotine vapor product,” and requires manufacturers to provide information necessary to establish that definition to a wholesaler or retailer, among other provisions.
After a third reading, the House passed SB 100, 82-11, with the committee substitute attached on March 12. The Senate concurred with the House committee substitute the following day, passing it on to the Governor after a vote of 32-6.
On March 24, Gov. Beshear signed SB 100 into law. A press release from the Governor’s office sent out the same day said it “seeks to create a licensing and regulatory framework for tobacco and vape retailers,” adding that the measure “will help keep these products from being marketed and sold to minors in the Commonwealth.”
Governor expresses concerns over the passage of House Bill 6
The Governor’s release also stated that the implementation of SB 100 would be halted by House Bill 6 if it were passed over his veto, which it was on March 27. Beshear’s decision to veto HB 6, which proposes the creation of a new section of KRS Chapter 13A in order to limit the authority of an administrative body to make declarations concerning administrative regulations, was based on his feeling that it violates the Kentucky Constitution by “giving the Legislative Branch and its employees a veto of administrative regulations issued by the Executive Branch.”
In the Governor’s veto message relating to HB 6, he said, “House Bill 6 is unconstitutional in both its purpose and action. In the House, the Majority Floor Leader made clear the purpose of the bill was to ‘remove all doubt that the most powerful branch of government’ is the legislature. He further claimed that ‘this country was founded on’ the legislative branch being superior to the other two branches of government. Such a purpose is contrary to the United State and Kentucky Constitutions, which recognize three equal branches of government, each limited by a strong separation of powers.”
Beshear went on to call HB 6 “a direct and transparent attack on that separation,” pointing out that the Kentucky Constitution gives the Governor, and the Governor alone, the “duty to faithfully execute the law.”
Beshear said that HB 6 interferes with his constitutional duty by eliminating the executive power to issue administrative regulations, and it also likely prevents the executive branch from implementing several bills that were passed by the General Assembly during the recently concluded legislative session.
“One of the conditions imposed by House Bill 6 is that newly issued regulations cannot cost more than $500,000 for implementation and compliance over any two-year period,” Beshear wrote in his veto message. “If it had been in effect, House Bill 6 would have prevented executive branch agencies from carrying out laws like those legalizing medical cannabis, sports wagering and historical horse racing.”
Specifically as it pertains to the implementation of SB 100, Beshear said, “Senate Bill 100 would regulate and license vape products. However, the implementation requires a new office under the Department of Alcoholic Beverage Control called the Division of Tobacco, Nicotine, and Vapor Product Licensing. It will require hiring new staff for the new division, which would exceed $500,000. It finally requires licensing by thousands of locations where vapor products are sold. Thus, the executive branch would be prohibited from filing the regulations that Senate Bill 100 requires, preventing the Governor from executing the law.”
Other bills could be affected
Beshear also mentioned SB 27, a bill primarily sponsored by 21st District Senator Brandon Storm that seeks to establish the Kentucky Parkinson’s Disease Research Registry within the Cabinet for Health and Family Services, as another piece of legislation that could be derailed as a result of the passage of HB 6, as it would require a one-time implementation cost of $635,000 to $1 million, as well as six-figure annual costs.
SB 27 was signed into law by the Governor on March 25.
Beshear used SB 1 as yet another example, stating it “requires numerous regulations on the operation of a Film Commission and awarding incentives,” which would result in “significant costs in implementation well over the threshold.” The Governor signed this bill into law on March 26.
HB 6 was reported favorably by the House Licensing, Occupations, and Administrative Regulations Committee prior to its passing with a vote of 75-19 after a third reading on Feb. 28. It passed the Senate after a third reading on March 13 with a vote of 29-6. The Governor vetoed the bill on March 24, but his veto was overridden three days later with votes of 80-20 and 31-7 in the House and Senate, respectively.
The newly added section of KRS 13A introduced by HB 6 includes a total of four subsections. Under subsection two, the language reads that “an administrative body shall have authority to promulgate a new administrative regulation… if the administrative body is given statutory authority to promulgate administrative regulations in a particular subject matter and certifies in the administrative regulation that the administrative regulation…”
The language goes on to identify six requirements that the administrative regulation must meet, the first of which being that the regulation “will not have a major economic impact.” Earlier in the bill, a major economic impact is defined as meaning that “the combined implementation and compliance costs of an administrative regulation are at least $500,000 over any two-year period.”
To view HB 6 in its complete form, as well as all other bills that were introduced during the 2025 legislative session, visit the website of the Kentucky General Assembly and the Kentucky Legislative Research Commission at www.legislature.ky.gov.
Editor’s Note: It is unclear if the passage of HB 6 over the Governor’s veto would also potentially hinder the implementation of SB 28, which seeks to create a new agricultural development program within the Department of Agriculture, but based on the concerns outlined above for other bills seeking to create new departments within the state government, that assumption would be easy to make.
For more information on the intended purpose behind SB 28, see the report titled “SB 28 passage allows for establishment of new agricultural economic development program,” which appeared in the April 2 print edition and is available now online at thenewsjournal.net/.
To read more about the intended purposes behind the aforementioned SB 1, see the Thinking Out Loud column titled “Brand new Kentucky film industry is one signature away from becoming reality,” which appeared in the March 19 print edition and is also available now online.
