Judge rules Massachusetts vape sales ban can remain in place, but requires changes

A Massachusetts judge ruled on Monday that the state’s four-month ban on the sale of all e-cigarettes and vaping products can remain in effect — but only for about a week.

The ruling, made by Suffolk Superior Court Judge Douglas Wilkins, came after the Vapor Technology Association and vape store owners called for the ban to be lifted in a complaint against Massachusetts Gov. Charlie Baker and Massachusetts Department of Public Health Commissioner Dr. Monica Bharel.

Wilkins wrote that “while the plaintiffs have shown a likelihood of success, the balance of harms weigh in defendants’ favor in some respects, and an immediate injunction against the entire Order would contravene the public interest.”

Wilkins also ruled that, when it comes to nicotine-vaping products specifically, the order “is preliminarily enjoined” from implementation and enforcement after October 28. In the meantime, the state will have to make changes to the order regarding the sale of nicotine-containing vaping products.

“The court therefore allows the defendants an opportunity to cure the defects,” Wilkins ruled regarding the sale of nicotine-containing products. “Nothing in this Memorandum and Order shall affect the validity of the defendants’ Order as applied to products containing tetrahydrocannabinol (THC) and any other cannabinoid or to black market products.”

Craig Rourke, of Rourke Law Office in Massachusetts, which represented the plaintiffs, said that his clients are “very encouraged.” He added that the ruling shows that the governor’s ban on all vaping products “was unconstitutional” and once changes are made, it will likely be a “drastically different” law.

In the meantime, the Baker administration stands by its decision-making behind implementing its ban.

“The administration declared a public health emergency and ordered a four-month temporary ban for retail and online sales of all vape products to better understand what is making people sick,” Baker’s office said in an emailed statement on Monday.

“With today’s ruling, the ban remains in place,” the statement said. “The administration maintains that the order was properly issued pursuant to the Commissioner’s emergency powers and will work with the Attorney General’s Office on next steps.”

Massachusetts was the first state to issue such a sweeping ban, which was implemented on September. The ban applies to all vaping products and devices, including tobacco and marijuana.

The ban comes in wake of a multi-state outbreak of lung injuries associated with vaping, which is currently being investigated by the US Centers for Disease Control and Prevention, the US Food and Drug Administration, state and local health departments, and other clinical and public health partners.

As of last week, 1,479 lung injury cases associated with e-cigarette products had been identified in 49 states, the District of Columbia and the US Virgin Islands, according to the CDC. The CDC also has identified 33 vaping-related deaths in 24 states, including one in Massachusetts. More deaths are under investigation, according to the CDC.