Governor Charlie Baker’s ban on vapes has been dealt another legal setback, after a state appeals court judge late Wednesday upheld an earlier ruling that will force the governor to either allow nicotine vape sales to resume Monday or begin the process of implementing the ban as a formal emergency regulation.
On Monday, Suffolk Superior Court Judge Douglas H. Wilkins had ruled that a coalition of nicotine vape companies was likely to prevail in its lawsuit challenging the four-month ban, which Baker implemented last month in response to an outbreak of vaping-related lung illnesses.
The companies had argued that legal nicotine vapes were not the cause of the illnesses, and that it was unconstitutional for Baker to have put the ban in place without first holding public hearings, analyzing the effect on small businesses, and formally implementing it as a regulation.
The administration countered that state law gives the governor sweeping unilateral emergency powers to deal with imminent public health crises — but Wilkins rejected that contention, saying the vaping health crisis wasn’t sufficient reason for Baker to short-circuit the usual regulatory process. He gave the administration until Monday to either drop the ban or, to keep it in place, begin the process of implementing the rule as an emergency regulation.
On Wednesday, state appeals court Judge Kenneth V. Desmond Jr. rejected Baker’s appeal of the ruling, praising Wilkins’s legal analysis and agreeing that the vape companies were likely to prevail. However, Desmond also rejected a request by the nicotine companies for the ban to be lifted immediately in light of the ruling.
“The Superior Court judge held three days of hearings in this matter and heard testimony from witnesses for both sides,” Desmond wrote in his order denying the appeal. “The lengthy memorandum of decision and order issued by the Superior Court judge after those hearings is thoughtful, thorough, and balanced. I am not persuaded that the defendants have established a likelihood of success on appeal. The Superior Court carefully balanced all of the equities concerned, including, but not limited to, financial and public health concerns, when it crafted its order.”
A spokesman for Baker said in a statement that the governor’s administration is “working on next steps. . . to ensure the ban remains in place.” He did not say whether the governor would appeal the ruling to the state’s highest court or begin the emergency regulation process suggested by Wilkins. If Baker officials opt to implement the ban as a regulation, they would have until December 24 to hold a public hearing on the policy.
The office of Attorney General Maura Healey, which is legally obligated to defend state agencies against lawsuits, is representing Baker’s Department of Public Health in the case.