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Baker says vaping ban lawsuit poses ‘bigger question’ about his authority to issue public health emergencies

Governor Charlie Baker.
Governor Charlie Baker.Steven Senne/Associated Press/File/Associated Press

Governor Charlie Baker faced questions Wednesday on Boston Public Radio about the merits of his four-month ban on all vaping products that has come under fire by consumers, regulators, industry experts, and much of the wider community.

The ban, which Baker implemented late last month, is on shaky ground this week after a state judge ruled Monday that the governor’s administration has until next week to properly re-file the ban as an emergency regulation, or nicotine vape sales will resume. The judge has not yet made a decision on cannabis vaping products.

Baker’s administration has already filed an appeal on the judge’s decision, as well as a motion to stay the ruling in an effort to pause the judge’s timeline for resuming nicotine vape sales. But Baker said on WGBH’s Boston Public Radio Wednesday that the appeal is about more than just this ban.

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“I think from our point of view, there’s a bigger question that’s at stake here about whether or not we have the authority to implement a public health emergency,” Baker told hosts Jim Braude and Margery Eagan on their “Ask the Governor” segment.

Suffolk Superior Court Judge Douglas H. Wilkins said Monday that Baker did not follow the proper procedures for enacting the four-month ban.

“I would say that we and the attorney general believe the process we used was consistent with state law, and that’s the question that’s going to get vetted by the higher court,” Baker said.

The governor also took questions from a handful of callers, at least two of whom voiced their support for his decision to temporarily ban the sale of vaping products.

A separate caller asked the governor to compare the number of vaping deaths this year to the number of cigarette smoking-related deaths. She asked Baker: When are you going to start banning cigarettes?

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“I totally get the point you’re making,” Baker said. “It’s not a secret that cigarettes are dangerous and are especially dangerous if you smoke them over a long period of time.”

But vaping is different, Baker said, particularly because of the shorter time it takes for someone to get sick or die from vaping, compared to smoking cigarettes.

“The whole idea behind vaping when it was originally promoted was that it was safe, not just safer than something else but safe. And it’s pretty clear at this point that under certain circumstances, it’s not safe,” he said. “Some of these people who got sick, the way their injury was described is the equivalent of a chemical burn that you would get in your lungs from like a toxic spill somewhere, and some of the people who died were not vaping for very long at all.”

“And I think one of the challenges we face here is if in fact there are issues around vaping that translate into significant injury, potentially permanent damage, and in some cases death with relatively infrequent use, we need to figure out what those are and put a regulatory program in place to protect people from it.”


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