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October 21, 2019

Judge Gives Massachusetts a Week to Fix its Vape Ban

A Massachusetts judge admitted the state is likely to lose the challenge against its ban on all vaping products, and even admitted that nicotine vaping products might not be responsible for the outbreak of lung injuries blamed on vaping, but still gave Gov. Charlie Baker the opportunity to keep his four-month ban in place.

The 32-page decision from Suffolk County Superior Court Judge Douglas Wilkins says that the ban on nicotine vaping products can stay in place if the state follows the proper procedures for passing an emergency rule. That means the governor will have to hold a public hearing in the next week and follow other required procedures or the ban will end next Monday.

“Input from affected industries and members of the public is a potent safeguard against executive abuse of discretion,” Judge Wilkins wrote. That sounds good, but it’s meaningless unless the state officials actually listen to the public—and they’ve shown no signs of doing that so far.

Interestingly, the judge acknowledges that the lung injuries upon which the state predicated its case have been tied convincingly to cannabis oil vaping products, and not to nicotine ones. He even notes that those victims who claim to have only used nicotine products might be lying.

“The record includes no verified or confirmed data about exclusive nicotine use,” wrote the judge. “At a minimum, the credibility of the self reports on that issue is seriously in question and may be unreliable for purposes of banning an entire industry.”

And yet he gave the governor the opportunity to keep his ban in place while the lawsuit is heard, even though he admits that the vape industry plaintiffs are likely to prove their case.

“With today’s ruling, the ban remains in place,” Gov. Baker’s communications director Lizzy Guyton told CBS Boston. “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 decision breaks the perfect 4-0 record of the vaping industry challenging the epidemic of emergency executive actions. Earlier this month, a panel of New York judges granted a temporary restraining order preventing Gov. Andrew Cuomo from enforcing his ban on flavored vaping products, and later a Michigan judge granted an injunction halting Gov. Gretchen Whitmer’s flavor ban.

And just last week, courts in Oregon and Montana temporarily shut down flavor bans in those states. The Oregon decision left the ban on flavored and modified cannabis oil vapes in place, acknowledging the widespread belief that the health issues are being caused by THC oil products, and not nicotine vaping products.

Both the Oregon and Massachusetts bans included both nicotine- and cannabis-containing vapor products, unlike other states, which only prohibited flavored nicotine products. Oregon’s ban covered only flavored products (and those with additives), but the Massachusetts ban included all vaping products, including e-liquids and hardware.

Smokers created vaping without any help from the tobacco industry or anti-smoking crusaders, and vapers have the right to keep innovating to help themselves. My goal is to provide clear, honest information about the challenges vaping faces from lawmakers, regulators, and brokers of disinformation. I recently joined the CASAA board, but my opinions aren’t necessarily CASAA’s, and vice versa. You can find me on Twitter @whycherrywhy
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