Baker bows to judge, submits vape ban as emergency regulation

Keith Srakocic/Associated Press/File/Associated Press

Vapes will remain prohibited in Massachusetts, after Governor Charlie Baker bowed to a state judge’s ruling and submitted the country’s broadest ban on the devices to state health authorities for approval rather than let it expire.

The state’s Public Health Council, at the behest of the Baker administration, voted unanimously Friday to adopt the ban on nicotine and marijuana vapes as a formal emergency regulation.

The ban will be submitted to the office of Massachusetts Secretary of State William Galvin and made official Monday, officials said. Meanwhile, state health officials said they have sent an advisory to local boards of health, which are charged with enforcing the ban, explaining that the prohibition on vapes will remain in place as-is.

The maneuvering followed Baker’s dramatic announcement last month that he was banning the sale of both tobacco and marijuana vapes in response to an outbreak of mysterious lung ailments that appears linked to the use of vapes that heat liquid concentrates containing THC and nicotine. Federal health officials have said additives in illicit marijuana vapes are the most likely cause of the outbreak, which has killed 34 people and sickened more than 1,600 nationally, and recently stopped advising consumers to avoid nicotine vapes.

Massachusetts reported the first known vaping-related death in the state earlier this month.

While other states have moved to ban certain flavors in nicotine vapes and questionable additives from regulated marijuana vapes, Massachusetts so far stands alone in having banned all such devices — even flower vaporizers, a separate category of products not linked to the health crisis.

Friday’s efforts by the governor to keep the state vape ban in place came after a ruling by Superior Court Judge Douglas Wilkins this week that sharply criticized the Baker administration for implementing the ban without holding public hearings or obeying other checks on the power of the executive branch to unilaterally implement rules.

Responding to a request from a nicotine vaping industry association and other plaintiffs suing to overturn the policy, Wilkins ordered the state to either drop the ban on nicotine vapes or begin the process of enshrining it as an emergency regulation by Monday.

Under the order, the administration must hold a public hearing on the ban by Dec. 24 and will also have to conduct an analysis of its effect on small businesses. Emergency regulations under state law may last a maximum of three months unless officials hold public hearings.

The Baker administration has insisted state law gives the governor broad powers to intervene in public health crises and quickly asked a higher court to overturn Wilkins’s order. But appeals court Judge Kenneth Desmond on Wednesday declined to do so, upholding Wilkins’s ruling and writing that it was “thoughtful, thorough, and balanced.”

However, the appeals court judge also rejected a request by the nicotine vaping association to immediately lift the ban in light of Wilkins’s ruling.

Wilkins this week allowed state officials to keep in place for now the ban on marijuana vapes without subjecting it to the emergency regulation process, saying evidence suggests oil vapes containing THC are likely the culprit behind the lung illnesses. However, Baker administration officials nonetheless included the portion of the ban affecting marijuana vapes in the proposed regulation submitted to the Public Health Council.

“The first step according to Justice Wilkins was this notion that we needed to run . . . any kind of a ban like this through the Public Health Council,” Baker told reporters Friday. “We believe that the process we pursued was appropriate, but we’re going to go ahead and pursue the process that was suggested by Justice Wilkins and his decision.”

The breadth of the ban has drawn sharp criticism from vape shop owners, some of whom have shuttered their stores, and from medical marijuana patients, many of whom rely on the fast-acting devices to treat acute pain and PTSD episodes, among other conditions.

Public health experts and some policymakers, including members of the state Cannabis Control Commission, have also argued that the ban is likely to push ex-smokers back to combustible cigarettes, pain patients back to addictive opioids, and other consumers into the illicit market, where products are more likely to be adulterated.

“In the name of public health, the Baker administration is putting the public’s health at risk, driving patients to the black market, or to opiates, or to illegal out-of-state purchases,” said Will Luzier, a medical marijuana patient and longtime Beacon Hill attorney who helped lead the 2016 marijuana legalization campaign. “There is absolutely no evidence that any tested and regulated medical cannabis product has caused illness in Massachusetts.”

David O’Brien, the president of the Massachusetts Cannabis Business Association, said licensed marijuana companies — which have been hit hard by the loss of vapes, the second-most popular product in the legal pot market — are eager to make their case to the Baker administration.

“We welcome the addition of transparency to the process,” O’Brien said. “The legal cannabis industry wants to do the responsible and right thing. We’re looking forward to having a cooperative conversation with the administration and public health officials.”