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Baker ban on vaping sales expected to survive first legal challenge in US District Court in Boston

EVA HAMBACH/AFP via Getty Images

Governor Charlie Baker’s four-month ban on all vaping product sales was expected to survive its first major legal challenge after a federal judge in Boston seemed cool to arguments seeking a temporary halt to the ban.

In seeking the restraining order, attorneys for several local vape companies and a national vaping trade association said businesses face “irreparable damage.” The ban has forced them to stop selling the majority of their inventory to in-state customers and, they said, made it nearly impossible to stay afloat.

“This has very real consequences because most people live week-to-week, and there are employees who have been laid off,” attorney Craig Rourke, representing the companies, said during the hearing in US District Court. “That’s why the temporary restraining order would give them a little bit of relief, and so we can have time to have a full evidentiary hearing.”

Rourke and Joseph M. Terry, who represented the Vapor Technology Association, said the ban is exacting a toll on small businesses. Their lawsuits, which have been filed separately, were discussed together during Friday’s hearing.


“It’s not just a matter of, ‘We can make it up next week,’ ” Terry said of the companies. “It is the end of the small businesses, and the vaping industry in Massachusetts and around the country is built on the backs of small businesses.”

US District Court Judge Indira Talwani didn’t seem to agree, indicating that issuing a two-week restraining order felt premature. She said considering whether the companies can survive for the full four-month ban is a different issue that can be addressed in a later injunction hearing.

“Are you suggesting, both of you frankly, that I should consider how well capitalized a company is in determining whether they’re bound to suffer irreparable harm?” Talwani asked the attorneys. “Isn’t — if you’re going to be engaged in business — isn’t it part of our whole notion of a corporation and corporate businesses that you’re adequately capitalized?”


By the end of the 70-minute hearing, Talwani said she was “leaning toward” denying the lawyers’ request for a temporary restraining order, which would have paused Baker’s ban for less than two weeks until the injunctive hearing, scheduled for Oct. 15.

Talwani has not yet filed a formal order denying the request.

More than 1,000 vaping-related illnesses have been reported across the country, according to numbers released Thursday by the US Centers for Disease Control and Prevention. As of Friday, at least 20 deaths have been reported. No deaths have been reported in Massachusetts.

Baker’s ban, which he announced alongside state health officials on Sept. 24, is considered one of the strictest vaping regulations nationwide. Other states that have taken action, such as Michigan, New York, and Rhode Island, have banned only the sale of flavored e-cigarette products.

But Baker has stood by his ban, which is in effect until Jan. 25 and could be extended. He said last week that it is necessary to allow health professionals to figure out exactly what is making people sick.

It’s a position that was repeated at Friday’s hearing by Assistant Attorney General Julia Kobick, who spoke on the state’s behalf. She said state health officials are now investigating at least 118 cases of vaping-related illnesses, 10 of which have been reported to the CDC.


Kobick rebutted Terry’s claims that nicotine vaporizers are safer than marijuana vapes. Terry repeatedly said cannabis vaporizers have been largely to blame for the spate of vaping illnesses, not the nicotine vapes that are the focus of the lawsuit he filed.

Although data from the CDC has shown that the majority of patients with vaping illnesses have reported using THC-containing products, about 17 percent of patients have reported using nicotine products exclusively.

“We don’t know what is causing these Americans to have to be hospitalized,” Kobick said Friday. “The CDC, the FDA, and officials at the Department of Public Health have emphasized repeatedly that . . . if it is a substance that is causing this crisis, it is not yet known.”

Talwani also seemed cool to Terry’s assertion that nicotine vaporizers are significantly healthier than combustible cigarettes. She smiled as she responded to him, saying that his assertions about the safety of vapes are eerily similar to those made by tobacco companies when evidence of cigarettes being harmful first came to light.

“It has a ring of past history, no?” she said, adding later, “You’re suggesting that I need to be more concerned about the economic harm to the businesses for this two-week period than the potential people who will end in the hospital during this two-week period.”

Felicia Gans can be reached at felicia.gans@globe.com. Follow her on Twitter @FeliciaGans.