USA TODAY International Edition
Massachusetts vaping ban to stand for now
Judge questions legality, orders state to rewrite it
BOSTON – A controversial temporary ban on the sale of all vaping products in Massachusetts can stand for now, a judge ruled Monday, saying the ban as written is likely unlawful but halting it immediately would “contravene the public interest.”
The decision, denying a request for an injunction from the vaping industry, is a partial win for Republican Gov. Charlie Baker, who enacted the strongest measure taken by any state to combat a national outbreak of vaping- related lung injuries.
But Suffolk County Superior Court Judge Douglas Wilkins, in a written order, questioned the legality of components of Baker’s executive order and said the four- month ban issued Sept. 24 can only remain if the commonwealth addresses the problems.
The judge gave the state until Oct. 28 to rewrite the ban. He also said the state must hold a public hearing, as required by state law, so affected vape shops and others can weigh in, and provide a fiscal impact to businesses.
Wilkins said the order covering nicotine products must be resubmitted as an emergency regulation. He noted the state has not addressed whether an “emergency” exists for adult users of nicotine- vaping products; instead it relied predominantly on an “epidemic” among young users.
“While the plaintiffs have shown a likelihood of success, the balance of harms weigh in defendants’ favor in some respects, and an immediate injunction against the entire order would contravene the public interest,” Wilkins wrote. “The court therefore allows the defendants an opportunity to cure the defects identified above.”
The judge’s decision comes after courts in Michigan and Oregon overturned recent bans in those states on the sale of flavored vaping products.
Tony Abboud, executive director of the Vapor Technology Association, said in a statement the group was pleased in part, but regretted the judge’s decision “to allow this improper ban to stay in place for a week while the State considers other regulatory alternatives.” He asked that the ban be suspended immediately.
Baker’s spokeswoman Lizzy Guyton said in a statement: “The administration maintains that the order was properly issued pursuant to the Commissioner’s emergency powers and will work with the Attorney General’s Office on next steps.”
The Vapor Technology Association, the lobbying arm of e- cigarette companies and vaping products, asked the judge to intervene to halt the ban, arguing the state acted without an accurate understanding of what’s caused the illness and that vape shops and companies have suffered irreparable damages. Massachusetts vape shops have brought a similar lawsuit.
In his 32- page order, Wilkins said vaping companies have “certainly suffered, and will suffer very great financial impact” and are “likely to show that the order is unlawful” as currently written.
The plaintiffs argued vaping products with THC, not nicotine, have caused the medical issues and that the total ban was an executive overreach.
The Centers for Disease Control and Prevention said last week the multistate outbreak of illnesses associated with the use of e- cigarettes is now responsible for at least 33 deaths and 1,479 cases of pulmonary disease. One death has been reported in Massachusetts.
Most of the patients report a history of using vaping with THC products.