Last week ended with a mix of good and bad news. There were a couple of encouraging legal developments, and two governors admitted they didn’t have authority to ban flavored vapes by executive order. Unfortunately, two other governors did. More lawsuits are being heard too.
The bottom line: it was an awful week, but not as bad as the hell week that came before it.
There are good things happening too. More mainstream reporters are asking hard questions about the vape bans and how they will affect people who’ve used e-cigs to quit smoking. And huge numbers of vapers are joining Twitter to challenge ban-happy politicians and activist anti-vaping organizations directly.
All the new activity by angry vapers has resulted in at least one ridiculous story accusing the vape industry of using astroturf tactics to promote the #wevapewevote hashtag. We’re getting noticed! We’re also coming together.
Today is National Save Vaping Day. The idea is for businesses to focus on helping consumer advocacy by donating a portion of their profits to the American Vaping Association (AVA) and the Consumer Advocates for Smoke-free Alternatives Association (CASAA). Everyone can help by patronizing businesses that take part.
A panel of judges from the New York State Appellate Division unanimously granted a temporary restraining order to the Vapor Technology Association (VTA), Benevolent ELiquids Inc., and Perfection Vapes, which have sued the New York Department of Health to overturn Gov. Cuomo’s flavor ban.
That means the state is “temporarily enjoined and prevented from enforcing” the flavor ban until the court rules on a motion for a preliminary injunction. That motion is set to be heard on Oct. 18. The TRO represents the first setback to any of the governors who have banned vaping products through executive actions.
Another nugget of good news came in the Maryland federal lawsuit, in which Judge Paul Grimm imposed a 10-month deadline for submitting premarket tobacco applications (PMTAs) for all vaping products. Before issuing his ruling, Judge Grimm had denied applications by vapor industry groups to intervene in the case, claiming that the FDA would protect consumers’ interests. In fact, he denied them before they had even been filed.
Grimm has now decided that the looming deadline imposed for PMTAs is sufficient reason to grant the motion to intervene. That means that the vaping industry will have standing to appeal Grimm’s decision, and to seek a stay of the current May 11, 2020 PMTA deadline.
Unfortunately, the governors of Washington State and Oregon could resist following the trend and banning flavors in their states. Both ordered bans of flavored vape products, including both nicotine- and THC-containing products.
Both bans are being justified by the nationwide outbreak of serious lung injuries that so far appear to be caused only by adulterated cannabis oil products. There have been no instances tied to commercial nicotine vaping products.
Washington Gov. Jay Inslee ordered the health department to ban flavors at its next meeting. That meeting is scheduled this Wednesday, Oct. 9, at 9:30 a.m. Washington’s vape trade association, the Pink Lung Brigade, is calling for a “rally for flavors,” urging vapers to attend and be heard. Details are in the CASAA call to action below.
Despite being the only state with lung injury deaths tied to legal dispensary cannabis products—and none associated with nicotine vapes—Oregon Gov. Kate Brown decided to ban flavored nicotine vaping products along with flavored cannabis oil.
Obviously, flavors have nothing to do with the illnesses or deaths. Brown also banned cannabis oil with any sort of additive, which may actually accomplish something. Gov. Brown used emergency rule-making authority under the Oregon Liquor Control Commission and the Oregon Health Authority to impose the temporary six-month ban.
Use the information in CASAA’s call to action to complain to Gov. Brown and tell Oregon legislators to oppose the governor’s abuse of emergency power.
The governors of New Jersey and Ohio have concluded that they lack the authority to unilaterally impose bans on vaping products. That’s good news for now, but it may mean flavor bans coming in the legislatures of those states—which unfortunately would be more damaging than temporary executive actions.
New Jersey Gov. Phil Murphy, responding to a recommendation from his unfortunately named Electronic Smoking Device Task Force, declared that it’s time to ban vaping products, but admitted he didn’t have the authority to do it himself
“Without question I would take more forceful executive action today—if I had the authority,” said the governor. That leaves the state vape industry association in position to fight any proposed ban in the legislature, which is far better than trying to overturn an “emergency” ban.
In Ohio, Gov. Mike DeWine called on state legislators to ban flavored products. He supports a bill introduced by Republican Rep. Tom Patton that would ban all flavors except tobacco. A separate bill would place additional restrictions on vape shops. The state already imposed a 10 cents-per-milliliter tax on e-liquid this year, which has forced many vape shops to close. Vapers should use the CASAA call to action below to urge legislators not to support the new bills.
The Ohio Vapor Trade Association (OHVTA) organized a rally at the statehouse in Columbus last Tuesday to protest the recent bans and urge the governor and state legislators not to follow the madness. The rally was well-attended, and could serve as a model for such actions, with vapers carrying signs and telling their stories to reporters.
“The vapor community here wants to work with our legislators and regulators, we want to be good stewards of the industry, which we have shown, but we must be given the chance to do so,” OHVTA president James Jarvis told the crowd. “We urge Gov. DeWine and legislative leaders to learn about our industry, to understand the rule flavors play and understand vape stores are not the ones selling to minors.”
The Utah Department of Health passed an emergency rule requiring licensed tobacco retailers to post warnings about THC oil cartridges (even though they are illegal), and restricts the sale of flavored vaping products to tobacco stores. While that may sound reasonable, many vape shops in Utah are actually not licensed tobacco retailers, but are classified as mixed retail stores. The rule would shut down their primary source of profits.
The state backed off and agreed to postpone enforcement of the rule until Oct. 21. The Utah Vapor Business Association hopes that will give them time to reach a compromise that will allow vape shops to stay in business.
“Hopefully in the next two weeks there will be more open dialogue,” said the UVBA’s Juan Bravo. But some Utah legislators want to make the emergency rule law and permanently restrict flavors.
Two lawsuits have been filed challenging Gov. Gretchen Whitmer’s “emergency” ban on flavors—one in state court by 906 Vapor owner Marc Slis, and a federal suit going after the state on interstate commerce grounds (the Michigan ban prevents Michigan manufacturers from selling and shipping products out of state).
In the 906 Vapor lawsuit, a hearing is being held in the Court of Claims tomorrow on a motion to grant an injunction preventing the state from enforcing the ban while the case is being decided.
Many Michigan vape shops have closed since the ban went into effect. The state maintains that it is somehow protecting public health by preventing the sale to adults of products that have never been shown to cause any health problems. Meanwhile, vapers are turning back to cigarettes.
The state health department issued a health advisory last week, warning vapers that illegal THC vape carts were a hazard. The state later changed the language of the warning to remove mention of the THC products, according to a tweet from Metro Times reporter Steve Neavling (below).
“This is completely irresponsible and inexcusable,” wrote Boston University public health professor Dr. Michael Siegel. “It puts Michigan youth and the entire public at risk by hiding from them the fact that most of the observed cases have been specifically associated with the use of black market THC vape carts.
“In my view, the Michigan Department of Health and Human Services should be held responsible for future cases of respiratory disease or death among state residents who were not adequately and properly warned against the specific dangers of vaping THC oils.”
CASAA still has an active call to action for Michigan, asking vapers (and other supporters of harm reduction) to support Rep. Beau LaFave’s bill that would eliminate the state Department of Health and Human Services’ ability to ban flavors
In Massachusetts, the VTA and four vaping businesses have sued Gov. Charlie Baker (R-MA) and Public Health Commissioner Dr. Monica Bharel in federal court for damages caused by the state’s four-month ban on all vaping products.
The lawsuit, filed in U.S. District Court in Boston, asks the court to “enjoin and declare as unconstitutional the emergency order issued by Commissioner Bharel that has shuttered and will irreparably destroy Massachusetts’ $331 million nicotine-vapor products industry and the livelihoods of the 2,500 workers that it employs.”
The lawsuit also claims that federal law (the FDA’s regulation of vapor products) preempts the Massachusetts ban, and that the state has no right to impede interstate commerce by banning federally regulated products. As in Michigan, a separate lawsuit has been filed in state court challenging the ban. And another group of Massachusetts businesses has filed a separate federal lawsuit.
A MassLive op-ed by Dr. Michael Siegel notes that the ban “will shut down the hundreds of vape shops, which help thousands of smokers in the state quit by providing them with a less harmful alternative.
“E-cigarettes are more than twice as effective as other nicotine replacement therapies; but many adult smokers will return to cigarettes if e-cigarettes become too difficult to obtain. And, of course, we will see a new, unregulated black market for e-liquids.”
CASAA issued a call to action soon after the ban was imposed, urging consumers to contact the governor and state legislators to register opposition. Massachusetts vapers should still continue to contact them!