Following Appeals Defeat, Gov. Baker Pursues Emergency Regulation For Temporary Vaping Ban

The Baker administration took steps Friday to keep its in-state retail ban on all vaping products in place next week and beyond, getting approval from the Public Health Council for an emergency regulation that will be filed on Monday.

The Public Health Council met on Friday and unanimously approved the emergency regulation, according to the administration, which has been spending the latter part of the week exploring ways to comply with a Superior Court judge's ruling while keeping the ban in place.

The governor's office said the action was taken in compliance with the order from Superior Court Judge Douglas Wilkins, and should be sufficient to prevent the ban on nicotine vaping products from lifting on Monday.

The regulation will be formally filed with Secretary of State William Galvin's office on Monday, the administration said.

Wilkins on Monday ruled that the Vapor Technology Association and other plaintiffs seeking to overturn the governor's four-month ban on vaping products were likely to succeed in their challenge to Baker's executive authority.

Wilkins ordered the governor to reissue the ban as an emergency regulation by Monday, or let the sale of nicotine vaping devices resume.

Baker and Attorney General Maura Healey appealed that ruling and requested a stay. Their motion was denied Thursday by Appeals Court Judge Kenneth Desmond.

Baker declared a public health emergency on Sept. 24 in relation to the nationwide outbreak of vaping-related lung injuries, which has resulted in 46 cases from Massachusetts being referred to the Centers for Disease Control for review, including one death.

Unlike the ban Baker tried to issue under his emergency powers, using the regulatory process will result in Baker's ban being shortened to three months. His administration will also have to hold a public hearing before Dec. 24, and draft a small business impact statement.

The council held a 9 a.m. meeting Friday with an agenda that called for discussion of strategy in the vaping case during executive session and a vote in public session on the emergency regulation. Council officials did not respond to an inquiry about what steps were taken to notify the public of its meeting.