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Danvers mall vape shop sues state over temporary ban

Steven Senne/Associated Press

A vape shop located in a Danvers mall filed a lawsuit Thursday challenging the state’s four-month ban on the sale of vaping products, saying it is unenforceable and was enacted without sufficient notice.

The complaint filed in Suffolk Superior Court, came two days after Governor Charlie Baker declared a public health emergency and applied the ban to both tobacco and marijuana vaping products.

Vapor Zone, which sells e-cigarettes and components in the Liberty Tree Mall, wants the court to void Baker’s declaration and find that state officials cannot enforce the ban, according to the court filing.

Craig Rourke, a Saugus-based attorney representing the shop, said the ban was overly broad and that officials misapplied a state statute, saying the current situation does not constitute an emergency as it is defined by state law.


“Never before has an entire class of product been banned pursuant to this statute, especially not one that’s already regulated by the FDA,” said Rourke during a Thursday night phone interview.

The ban means Vapor Zone, which employs 11 and sells tobacco products but not marijuana products, cannot currently do business, he said.

“That’s the only product they sell,” Rourke said.

Defendants named in the complaint include the state’s Department of Public Health, Public Health Council, and Dr. Monica Bharel, the state’s public health commissioner, among other officials.

A spokeswoman for the state’s Department of Public Health said Thursday the agency does not comment on pending litigation.

Terry MacCormack, a spokesman for the governor, said in a Thursday statement: “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 Baker administration, said MacCormack, does not comment on pending lawsuits.

The ban, which the state’s Public Health Council quickly approved Tuesday, took effect immediately and will last through Jan. 25, though Baker and the council could choose to extend it. It includes both flavored and unflavored vaping products, and applies to both online and retail sales.


The Baker administration stressed that the decision is intended to allow the medical community and federal officials time to investigate what’s driving the spike in vaping-related breathing illnesses.

Matt Stout and Edward Fitzpatrick of Globe staff contributed to this report. Material from the Associated Press was used in this report. Danny McDonald can be reached at daniel.mcdonald@globe.com. Follow him on Twitter @Danny__McDonald.