A national vaping group and its members have filed a federal lawsuit seeking an immediate end to the state’s four-month ban on the sale of nicotine and cannabis vaping products, ramping up industry pressure on the Baker administration just a week after the order went into effect.
The Vapor Technology Association, which has more than 1,000 members, filed the lawsuit Tuesday asking a judge to immediately intervene and end the ban, imposed as part of a public health emergency. The lawsuit names Governor Charlie Baker and Monica Bharel, the commissioner of the state Department of Public Health, as defendants in the case.
“The emergency order already has caused the closure of vapor-products retailers around the state,” the plaintiffs argued in a request for an immediate judicial order. “Unless enjoined, it will destroy the $331 million nicotine-vapor-products industry in Massachusetts, creating irreparable harm to the many law-abiding retailers, manufacturers, and distributors of these products located in (and out of) the state, as well as their employees.”
The association, describing nicotine-containing vaping products as a safer alternative to cigarettes, said the ban will also “heighten the health risks to the public, both by eliminating a safer alternative to smoking and by forcing those who wish to use vapor products to obtain them on an unregulated black market — the very source of the health outbreak purportedly motivating the ban.”
A hearing on the request for a preliminary injunction has been scheduled for 11 a.m. Friday in federal court in Boston.
Terry MacCormack, a spokesman for Baker, said in a statement that the administration would not comment on a pending lawsuit. The statement added: “The administration has declared a public health emergency in Massachusetts and has ordered a four-month temporary ban for retail and online sales of all vape products, effective immediately. The administration will continue to work with medical experts and federal and state officials to better understand why vaping is causing lung-related illnesses and consider all options as next steps.”
The Vapor Technology Association describes itself as a nationwide member-driven organization that aims to keep regulated nicotine-containing vapor products available for adults in Massachusetts and as an alternative to tobacco cigarettes. The association said it was working to protect the rights of the state’s 2,500 workers.
Since Baker’s ban went into effect, individual retailers have filed at least two lawsuits in state court. But the vaping association’s complaint in federal court argues that the ban will have far broader national implications on a legal industry.
“It will impermissibly burden both Massachusetts citizens and those far beyond the commonwealth’s borders,” the lawsuit argues. “The emergency order unconstitutionally burdens interstate commerce. Its prohibition on the retail or online display of products infringes on plaintiffs’ and others’ First Amendment rights.”
The lawsuit was filed the day after state public health officials announced five more reported cases of vaping-related illness, bringing the statewide total of Massachusetts cases reported to federal health authorities to 10. The state officials said the exact cause of the illness remains unknown, but that “vaping and e-cigarettes are the common threat and are making people sick.”
The state said it reported the new cases to the US Centers for Disease Control and Prevention.
So far, 83 “suspected vaping-related pulmonary cases” have been reported to the state’s Department of Public Health since Sept. 11.
Critics of the ban have called it overly broad, noting that federal health authorities looking into a wave of vaping-related illnesses have so far been focused on additives in black-market cartridges used to vape marijuana products.
Cigarette smoking is the country’s leading cause of premature death. However, research — recent and dating back to 2012 — suggests that some of the chemicals used in vaping liquids can harm the lungs. The vaping liquid is heated into a gas, typically by battery-operated metal coils, to be inhaled.