Baker’s Vape Ban Stands But Judge Outlines Conditions

A Juul display was cleared out in September at Richdale Convenience Store across from the State House. Surrounding the empty case were packed shelves of cigarettes, lottery tickets, and diverse CBD products. (Courtesy photograph/Sam Doran, State House News Service.)

In a ruling critical of how Gov. Charlie Baker went about banning the sale of all vaping products for four months, a Superior Court judge on Monday allowed the administration’s full ban to stay in effect, but only until next week unless changes are made.

The ruling left the governor’s ban on marijuana vaping products untouched, but Judge Douglas Wilkins gave the administration until Monday to reissue the ban on nicotine vaping products as an emergency regulation.

The change in approach would force the administration to write a small business impact statement and hold a public hearing no later than Dec 24. Under state law, the duration of the ban would also be limited to three months, expiring on Christmas Eve unless a hearing is held to extend the ban.

Baker and Department of Public Health Commissioner Monica Bharel were sued by the Vapor Technology Association, Ian Devine and Devine Enterprise, Inc. following his decision in September to declare a public health emergency and have the DPH order a four-month ban on all in-store and online sales of vaping products in Massachusetts.

The ban was a response to the nationwide outbreak of vaping-related lung injuries, but the plaintiffs allege that the governor overstepped his executive authority and violated the state constitution’s separation of powers.

Wilkins sympathized with the plaintiffs, including the Vapor Technology Association, who the judge said “have certainly suffered, and will suffer, very great and irreparable financial impact” from the ban.

According to the State House News Service, Baker”s next move is somewhat unclear. The administration could appeal the decision, amend its order or open an emergency regulatory proceeding.

Of the 1,479 cases of vaping related lung injury reported to the CDC nationwide, Massachusetts has referred 29 cases—10 confirmed and 19 probable—to the federal government, including one death.

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