Judge orders Massachusetts to redo parts of vaping ban

BOSTON (Reuters) – A Massachusetts judge on Monday ruled that a four-month ban on the sale of vaping products the state adopted in response to an outbreak of lung illnesses linked to e-cigarette use was likely unlawful, but he gave the state time to fix its defects.

Suffolk County Superior Court Judge Douglas Wilkins in Boston said he would bar the state from enforcing the ban on nicotine-vaping product sales unless Governor Charlie Baker’s administration by next week put forward a new rule codifying it.

But Wilkins said because Baker’s administration could easily re-enact his Sept. 24 emergency order imposing the ban through a regulation that the public could comment on, he did not believe it was appropriate to rule more broadly.

The ruling was a mixed result for Baker and the industry trade group Vapor Technology Association, which challenged the ban in court, saying it posed an “existential threat” to the state’s $331 million nicotine vaping products sector.

That ban covered the sales of e-cigarettes and vaping supplies, both those used for nicotine and THC, the psychoactive ingredient in marijuana, which is legal in the state.

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.

The VTA and Baker’s office did not respond to requests for comment.

In its lawsuit, Washington-based VTA argued that Baker’s emergency order marked an unconstitutional overreach by the governor by imposing a law that the state’s legislature never approved.

It also argued the order was arbitrary, by claiming to target youth vaping and the outbreak by banning all sales to anyone in the state regardless of age even when evidence suggested black market products were behind the lung injuries.

At least 1,479 e-cigarette-linked lung injury cases have been reported 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.

Several other states, including Michigan, New York, Washington, Oregon and Rhode Island, have moved since September to restrict sales of flavored e-cigarettes on the grounds that they pose a health risk to teenagers.

Courts in New York, Oregon and Michigan have since put those state’s bans on hold following lawsuits by the vaping industry. A federal judge in Boston previously declined to block Massachusetts’ prohibition, which was much broader.