Judge orders Massachusetts to redo parts of vaping ban

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Judge orders Massachusetts to redo parts of vaping ban
Close up on a man exhaling vapor from an electronic cigarette

United States Judge has declined to immediately halt a ban on the sale of vaping products adopted after an outbreak of e-cigarette-related lung injuries.

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.

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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.

Judge has declined to immediately halt a ban on the sale of vaping products but he said the state must redo the ban and get public comment this time.