Massachusetts Vaping Sales Ban Can Stand but Needs Fixes – Judge

BOSTON — A Massachusetts judge on Monday declined to immediately halt a ban on the sale of vaping products adopted after an outbreak of e-cigarette-related lung injuries, but he said the state must redo the ban and get public comment this time.

The ruling by Suffolk County Superior Court Judge Douglas Wilkins in Boston was a partial victory for Republican Governor Charlie Baker, who through an executive order last month adopted the toughest sales ban of any state in response to the outbreak.

But Suffolk County Superior Court Judge Douglas Wilkins said Baker likely overreached his authority in issuing the order and said he would bar the state from enforcing the ban on nicotine-vaping product sales unless several defects were addressed.

Wilkins nonetheless concluded that immediately halting the ban as the industry trade group Vapor Technology Association wanted through its lawsuit challenging the Sept. 24 order “would contravene the public interest.”

The judge gave Baker’s administration until Oct. 28 to reissue the ban through an emergency regulation and said the state must also provide a chance for vape shops and other members of the public to comment.

And Wilkins said nothing in his ruling would affect the ban’s application to products containing THC, the psychoactive ingredient in marijuana, which is legal in the state, or black market products.

Lizzy Guyton, a spokeswoman for Baker, said his administration maintained the order was properly issued and was exploring next steps.

Tony Abboud, VTA’s executive director, said it regretted the ruling and would seek to block the ban, which the group has called an “existential threat” to the state’s $331 million nicotine vaping products sector.

At least 1,479 e-cigarette-linked lung injury cases have been reported nationally to U.S. Centers for Disease Control and Prevention. It says most cases have been linked to products containing THC, particularly those obtained off the street.

In its lawsuit, Washington-based VTA argued that Baker’s emergency order was an unconstitutional overreach and was arbitrary as it claimed to target youth vaping and the outbreak by banning all sales to anyone in the state regardless of age.

Several other states, including Michigan, New York, Washington, Oregon and Rhode Island, have recently moved to restrict sales of flavored e-cigarettes, saying they pose a health risk to teenagers.

Courts in New York, Oregon and Michigan have since put those states’ bans on hold following lawsuits.