The ban on the sale of nicotine vaping products in Massachusetts will remain in effect for now but is on shaky legal ground, after a state judge ruled Monday that Governor Charlie Baker overstepped constitutional bounds when he enacted the policy before affected businesses and members of the public could weigh in.
Responding to a request from vape companies to lift the ban while legal battles over the prohibition play out, Suffolk Superior Court Judge Douglas H. Wilkins ordered that nicotine vape sales in Massachusetts must be allowed to resume next Monday — unless the Baker administration submits the ban for consideration as a formal emergency regulation before then. The administration could also appeal to a higher court.
The ruling does not immediately affect the part of Baker’s vaping ban prohibiting the sale of marijuana vapes at licensed cannabis retailers.
Baker implemented the four-month ban on Sept. 24, after federal health officials linked numerous cases of mysterious lung ailments across the country to the use of vapes. Massachusetts has so far reported 28 vaping-related illnesses and one death to the Centers for Disease Control and Prevention and is investigating 63 more. Nationwide, nearly 1,500 people have fallen ill, while 33 have died.
To implement the ban on nicotine vape sales as an emergency regulation, as the judge suggested, state health officials would have to hold a public hearing and analyze how the ban would affect small businesses, among other requirements. The Baker administration skipped those steps in September when it implemented the ban by claiming state law gives the governor sweeping unilateral emergency powers to address imminent public health crises.
“Input from affected industries and members of the public is a potent safeguard against executive abuse of discretion,” Wilkins wrote in his ruling. “If the executive branch avoids . . . input and safeguards, it unwittingly creates an echo chamber in which government officials’ own viewpoints reinforce each other, potentially causing unnecessary harm and ill-informed decisions.”
The judge added that the ban had been enacted “without transparent consideration” of the “very great and irreparable” financial harm it inflicted on vape businesses.
He also noted that only Massachusetts has banned all vape products, while other states have taken more limited steps — such as banning certain additives or flavors — to respond to the vaping health crisis. Ultimately, Wilkins said, the lack of public input and other checks on executive power has “led Massachusetts to adopt an over-inclusive ban that no other state has found necessary or appropriate.”
However, Wilkins wrote, immediately overturning the rule could invite “great uncertainty and confusion,” especially if it were legally re-imposed within a week.
Instead, the state under the order will have a week to either drop the ban or begin the process of implementing it as an emergency rule. If officials move forward with implementing an emergency regulation, Wilkins ordered, they must hold a public hearing by Dec. 24.
A Baker spokeswoman insisted the original ban was legally sound.
“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,” Lizzy Guyton, Baker’s communications director, said in a statement. “The administration maintains that the order was properly issued.”
Speaking to reporters at the State House later Monday, Baker said his administration will decide within a day or two whether to appeal the ruling or obey it by starting the emergency regulation process.
“From the beginning, this was a public health question first and foremost,” Baker said. “And we recognized and acknowledged that the courts might be a place where this issue would play out. But I think for us the big issue is to recognize that the ban is still in effect.”
The Vapor Technology Association, the nicotine vaping industry group that had challenged the ban along with a Massachusetts vape shop, said the order by Wilkins vindicated many of its arguments — including that the ban had devastated local retailers and risked pushing consumers to buy dangerous illicit products — but said the ban should have been lifted immediately.
“We are pleased that the Superior Court recognized that we are likely to prevail on our claims that the [ban] was improperly issued and arbitrary and capricious,” Tony Abboud, the association’s executive director, said in a statement. “We regret, however, the court’s decision to allow this improper ban to stay in place for a week while the state considers other regulatory alternatives. Based on the court’s findings, the ban should be enjoined immediately, and we will be asking for that relief.”
Of the 29 vaping-related lung cases in Massachusetts, 20 reported vaping marijuana, seven reported vaping both marijuana and nicotine, and eight reported vaping nicotine only.
Monday’s ruling did not address the legal propriety of Baker’s similar ban on marijuana vaping products.
However, the judge’s concerns about the closed-door process Baker’s administration used in deciding to implement the ban could give licensed cannabis firms an opening to challenge that part of the ban. “These constitutional provisions should apply equally to any business, and no sales should be shut down if the means by which they were shut down were legally improper and overreaching,” said David O’Brien, president of the Massachusetts Cannabis Business Association. “We’re reviewing what our legal remedies [are].”
Also on Monday, Wilkins allowed a group of medical marijuana patients to join the case as coplaintiffs; they are seeking to lift the ban on legal cannabis vapes, arguing that vapes sold at licensed dispensaries are lab-tested and far safer than those sold on the street.
In defending the ban on marijuana vapes, the Baker administration has noted that most of the lung illnesses are related to THC products and pointed to the death of a patient in Oregon who had reportedly used a vape from a regulated store there. Despite federal data linking only an infinitesimal proportion of lung illnesses to regulated cannabis vapes, an attorney representing the administration said in court that blaming illicit products alone was “just pure speculation, and I think it’s irresponsible.”
But in emotional testimony at an afternoon hearing, medical marijuana expert Dr. Peter Grinspoon and several patients excoriated Baker officials for saying that patients could use other forms of cannabis, insisting that vaping provided the only effective and practical relief for many of those suffering from chronic pain and serious ailments. Edibles, they explained, took too long to kick in, while smoking is harsh and unhealthy — and banned in most rental housing.
“I’ve got enough [marijuana vape cartridges] probably to go until the end of the week,” Douglas Luce, a former roofer who uses cannabis to treat extreme back pain resulting from multiple falls, testified in court. “After that, maybe I’ll go back to taking four oxycodones a day.”