Support the news

Baker, Vaping Industry Both Appeal Judge's Ruling On Mass. Vape Ban

Vaping products, like these that were on display at Liquid Smoke Shop in Allston in September, were temporarily banned by the state. (Jesse Costa/WBUR)
Vaping products, like these that were on display at Liquid Smoke Shop in Allston in September, were temporarily banned by the state. (Jesse Costa/WBUR)

The plaintiffs in the case challenging Gov. Charlie Baker's four-month ban on the in-state sale of nicotine and marijuana vaping products have also filed an appeal of a Superior Court judge's ruling that partially sided with the vaping industry.

The Vapor Technology Association on Tuesday asked the Appeals Court to impose an immediate injunction based on Superior Court Judge Douglas Wilkins's conclusion that the plaintiffs were likely to prevail in their lawsuit seeking to overturn the ban.

Wilkins gave the governor until Monday to reissue his ban as an emergency regulation, which would shorten its duration and open the ban up to a process allowing for public testimony.

"Based on the Court's findings, the ban should be enjoined immediately, and we will be asking for that relief," said Tony Abboud, executive director of the Vapor Technology Association.

The legal maneuver coincided with the administration's own decision to appeal the Superior Court decision, arguing that it would have "far-reaching and dangerous consequences" by hamstringing the government's ability to respond to emergencies.

"It would thwart government officials' ability to respond swiftly not only in the case of a public health emergency, but also in analogous situations, such as a declared emergency necessitating emergency action to restore gas, electric and water services," attorneys from Attorney General Maura Healey's office wrote in their appeal memo.

The attorney general's office, representing Baker and Public Health Commissioner Monica Bharel, has also requested an expedited hearing this week on a motion to stay Wilkins's order while their appeal is being heard. A date has not yet been set for the hearing, but the case has been assigned to Associate Justice Kenneth Desmond, who was put on the Appeals Court in 2016 by Baker.

"The Superior Court's injunction, if allowed to stand, would put the health and safety of Massachusetts residents in immediate jeopardy," the attorney general's office argued in in court filings.

Healey, who testified on Wednesday at an annual conference on health care cost trends, said she is just waiting to get direction from the Appeals Court on whether the ban can stand, should be reissued as an emergency regulation, or be handled in some other manner.

"But we will be prepared to work with the governor and his administration, regardless of the outcome," Healey told reporters.

The Vapor Technology Association filed a memo opposing the administration's motion for a stay, contending that the state is both unlikely to prevail in its broader case and is causing "great and irreparable harm to small business owners and their employees across the Commonwealth" by continuing to impose the ban.

Lawyers for the administration noted that nothing in the ban precludes vape store owners from selling and delivering products to customers outside of Massachusetts until the ban is lifted.

Healey called the retail vaping ban a "public health issue."

"We've seen the incidents of respiratory and pulmonary disease here and across the country and it's important that our public health officials have an opportunity to get a handle on it," she said.

The administration reported on Wednesday that it had referred 17 more cases of vaping-related lung injury to the Centers for Disease Control, bringing the total number of cases referred from Massachusetts to 46 cases, including one death.

The Department of Public Health also announced that it had developed a brand new online dashboard that will be updated every Wednesday by 12 p.m. with the latest information on vaping illness cases reported to the CDC.

The Department of Public Health has received 184 reports from doctors of suspected vaping-related lung injury. Of the 46 cases referred by the state to the CDC, 16 cases have been confirmed and 30 are probable and a majority of the cases, 27, are in female patients.

The one death recorded so far in Massachusetts was a woman in 60s from Hampshire County.

Baker on Tuesday morning said the ban was launched "to put a pause on the market and to give legislators, regulators, data scientists, health care professionals and others a chance to try and figure out just what exactly was going on here."

The Centers for Disease Control has not pinpointed the cause of the rapid growth in vaping-related lung injuries, but there has been evidence linking many of the cases to black market, marijuana vaping devices.

In Massachusetts, 19 of the patients whose cases were referred to the CDC reported vaping only THC, the active ingredient in marijuana, while 12 reported vaping both THC and nicotine and 11 said they only vaped nicotine.

State House News Service reporter Colin A. Young contributed to this report.

Related:

+Join the discussion
TwitterfacebookEmail

Support the news