Governor Charlie Baker and the state’s health commissioner, Monica Bharel, have appealed a state judge’s decision that would reinstate the sale of nicotine vapes next week if the Baker administration doesn’t take the proper steps to keep the ban in place before then.
Suffolk Superior Court Judge Douglas H. Wilkins ruled Monday that Baker did not follow the proper procedures when he mandated a four-month ban on all vaporizer sales at the end of September.
Wilkins gave Baker until Monday to submit the ban as an emergency regulation to keep it in effect. To implement the ban as an emergency regulation, state officials would have to hold a public hearing and discuss the various effects of the ban, including the impact on small businesses.
The judge’s ruling applies only to the sale of nicotine vapes and does not affect the sale of marijuana vaporizers at licensed cannabis dispensaries.
Baker and Bharel filed their appeal after the judge’s decision Monday.
Lizzy Guyton, a spokeswoman for the governor, said Monday that the “administration maintains that the order was properly issued pursuant to the commissioner’s emergency powers.”
Baker’s administration has also filed a motion to stay the ruling, asking the state Appeals Court to halt the deadline for Baker to file the ban as an emergency regulation. The governor has asked the court to make a decision on that stay by Thursday.
“While plaintiffs allege that they will experience economic harm if the emergency order remains in place, the harm to the public interest if the injunction remains in place is incalculable, given the certain reality that the reintroduction of vaping products for sale to Massachusetts consumers will lead to more illnesses and deaths,” attorneys for Baker and Bharel wrote in the motion for the stay.
Meanwhile, the Vapor Technology Association, which had sued the state over the vaping ban, indicated Monday that it plans to file its own appeal of the judge’s decision.
Tony Abboud, the association’s executive director, said in a statement that because the state court determined that Baker did not properly enact the vaping sales ban, “the ban should be enjoined immediately.”
Baker’s four-month ban on the sale of vaping products was announced amid a nationwide vaping crisis that has sickened nearly 1,500 people and killed at least 33. One person has died from a vaping-related illness in Massachusetts, and state officials have reported 28 cases of the illness to the US Centers for Disease Control and Prevention.