New York Governor Issues an "Emergency" Flavor Ban

Sunday New York Gov. Andrew Cuomo announced an “emergency executive action” to impose a ban on the sales of flavored vaping products (except tobacco and menthol). The ban could take effect as early as Oct. 4 and is expected to last for 90 days.

The stated reason for the vape ban is youth vaping and nicotine addiction, but Gov. Cuomo has also conflated black market THC oil products connected to the outbreak of severe lung illnesses with commercial nicotine vaping products in order to add a sense of urgency to his action.

"New York is confronting this crisis head-on and today we are taking another nation-leading step to combat a public health emergency," Governor Cuomo said in a statement. "Manufacturers of fruit and candy-flavored e-cigarettes are intentionally and recklessly targeting young people, and today we're taking action to put an end to it.”

Once enacted, the new emergency rule will give retailers two weeks to sell off existing stock, according to Long Island News 12.

The governor said he will also propose legislation next year to “prohibit advertising and marketing to young people,” and has directed the State Police to “partner” with the Department of Health to crack down on retailers who sell to minors. The state may even institute criminal penalties for sales to underage people.

“Vaping is dangerous,” Cuomo said at a press conference Sunday. “Period. No one can say long-term use of vaping—where you’re inhaling steam and chemicals deep into your lungs—is healthy.”

New York Department of Health Commissioner Howard Zucker will hold an “emergency meeting” with the state’s Public Health and Health Planning Council to institute the ban. The PHHPC is an obscure state agency, primarily responsible for creating the sanitary code and operating regulations for home health care and hospice, making decisions on establishment of new health care facilities and programs, and making recommendations to the commissioner “concerning major construction projects, service changes, and equipment acquisitions in health care facilities and home care agencies.”

The decision to involve the PHHPC in the vape ban was probably made because the governor could find no other legal way to do it. Also in the agency’s mandate: to advise the commissioner “on issues related to the preservation and improvement of public health.”

Gov. Cuomo has tried to ban vaping through executive action before, but his administration backed off, claiming the proposed rule was going through “one more round of legal review.”

The governor has backed legislation to ban flavors too, but the proposed bills have always stalled in the legislature. Apparently Cuomo believes he has found a winning strategy this time.

The move will almost certainly be challenged in court by independent vaping retailers and manufacturers. The New York State Vapor Association has been successful in preventing legislative attempts to restrict vaping products. But this new executive action will be a different kind of threat; it’s unlikely that pressure from vaping consumers and small businesses will change the governor’s mind.

The national trade organization most likely to participate in fighting the ban—the Vapor Technology Association—will have its hands full beating back multiple state bans while simultaneously pursuing its lawsuit against the FDA. The VTA recently lost its richest member when JUUL Labs quit the organization because it disagreed with suing the federal agency.

JUUL itself will not challenge the ban, since the governor is not prohibiting sales of tobacco and menthol flavors. Even if JUUL’s mint flavor is prohibited, the elimination of other companies’ offerings will give JUUL an incredible advantage over the few competitors that will survive. The company told the Associated Press that it will "will fully comply with local laws and the final FDA policy when effective."

New York vape shop owners were scrambling Sunday to learn if they could sell nicotine and flavorings separately. So-called “nic shots” have been used in other places to thwart rules aimed at restricting bottle size (the United Kingdom) or imposing taxes on nicotine-containing liquids (Chicago). The future of small New York vape businesses may depend on identifying such workarounds to the new rule.

Cuomo’s action follows a similar ban in Michigan, announced less than two weeks ago by Gov. Gretchen Whitmer. In Michigan, the Department of Health and Human Services can declare a public health emergency and impose a “temporary” ban of six months (and another six-month extension) without support from the state legislature.

More recently, President Trump announced last week that U.S. health agencies would also ban flavored vaping products. Trump seemed to back off slightly on his pledge after an avalanche of phone calls to the White House and tweets from angry vapers. But he hasn’t announced any change of plans yet.

The common denominator in all three bans is the public confusion over the national outbreak of lung injuries caused by adulterated black market THC oil cartridges. That confusion has been exacerbated by the CDC’s deliberate use of the term “e-cigarettes” to describe what cannabis users call oil pens, weed vapes, vape carts, and similar names. Conflating the two types of vaping products could cause serious consequences for both kinds of vapers.

The New York governor and health commissioner also tried to tie the recent outbreak to commercial nicotine vaping. “We need to tackle this as fast as possible,” health commissioner Zucker told reporters, explaining that his department had tracked 64 cases of lung disease. “We don’t need to repeat history.”