SJC upholds rulings challenging Baker on vape ban

The ruling from the Supreme Judicial Court had no immediate practical implications — consumers are still forbidden from purchasing any vaping products in the state. Frank Franklin II/Associated Press/File 2014/Associated Press

The state’s highest court Thursday upheld a lower judge’s decision challenging Governor Charlie Baker’s authority to unilaterally ban vape sales in Massachusetts.

The ruling from the Supreme Judicial Court had no immediate practical implications — consumers are still forbidden from purchasing any vaping products in the state. The only exception is for registered medical marijuana patients, who may purchase vaporizers that heat ground marijuana flower.

Baker implemented the ban on all types of nicotine and marijuana vapes in September, saying state law granted him broad emergency powers to protect public health amid an outbreak of vaping-related lung illnesses.

But in response to legal challenges from vape manufacturers, retailers, and medical marijuana patients, Suffolk Superior Judge Douglas H. Wilkins ruled in October that Baker’s administration had overreached by imposing the ban unilaterally and without holding public hearings.

However, Wilkins allowed the prohibition to remain in effect after Baker officials took steps to formalize the rule as an emergency regulation; a public hearing is scheduled for next week.

Wilkins further ruled earlier this month that Baker officials, by banning marijuana vapes, had improperly overridden the state Cannabis Control Commission’s exclusive power to regulate marijuana products. He handed authority back to the independent agency, whose executive director Tuesday effectively continued the ban by ordering licensed marijuana companies to quarantine all oil vapes until investigators can test for them for safety.

Baker’s administration had appealed both rulings to the SJC. But on Thursday, the high court’s seven justices declined to overturn Wilkins’s decisions. In a brief decision, they noted that Baker’s original ban on nicotine vapes remains largely intact, and that Wilkins’s injunction against enforcing it would only have taken effect if officials had not gone through with promulgating the rule as a formal emergency regulation.

Similarly, the justices said, the commission’s quarantine on marijuana oil vapes effectively continues Baker’s ban, making any intervention by the SJC unnecessary for now. They also affirmed Wilkins’s finding that flower vapes have probably not contributed to the lung illnesses, and observed that Baker’s administration seems content to allow medical marijuana patients to purchase them.

The SJC justices dismissed the appeals without prejudice, meaning Baker’s administration can still appeal any court rulings or cannabis commission decisions that would end the bans on the sale of nicotine and marijuana vapes.

Baker officials “may renew their motion if it becomes imminent that the preliminary injunction will take effect and a stay is necessary to preserve the ban,” the SJC decision read in part.

Federal authorities now say more than 2,100 Americans have been sickened by vaping-related illnesses, while at least 42 people have died, including three in Massachusetts. Flower vaporizers have not been linked to any of those cases, and officials at the US Centers for Disease Control on Thursday announced that vitamin E acetate — an additive found in some illegally manufactured marijuana oil vapes — was present in all 29 patient lung fluid samples recently analyzed by the agency.

Meanwhile, the state’s official cannabis advisory board Thursday urged the Cannabis Control Commission to pass regulations addressing health concerns about marijuana vapes and allow the products to be sold again.

The commission voted last week to affirm its intentions to regulate vape ingredients, manufacturing processes, and testing protocols but declined to clarify a timeline for that process, citing the ongoing federal investigation into the lung illnesses and pending lawsuits.

At a meeting, the advisory board voted 11-5 to recommend that the commission pass emergency regulations for vaping products. Cannabis industry leaders and patient advocates on the board supported the measure, but the board’s police, health, and other government members largely abstained or opposed it.

Kim Napoli, director of diversity programs at New England Treatment Access, a marijuana company with stores in Brookline and Northampton, proposed the recommendation, saying that people were buying cheap, widely available illicit vaping products that were far more dangerous than the quarantined regulated products.

“There have not been any cases of these vaping illnesses tied to our regulated market,” Napoli said, adding that the commission “should move to support the regulated market and also thereby support public health and safety.”

NETA president Amanda Rositano, another board member, suggested the commissioners should at least temporarily restrict the ingredients allowed in oil cartridges, which are tiny vials of oil that are heated to produce vapors that are then inhaled. Rositano said regulators should limit those ingredients to only cannabis and terpenes, a class of chemicals naturally found in marijuana and other plants that affect taste, smell, and the effect the substance has on a consumer.

That restriction — while federal authorities work to identify other dangerous additives besides vitamin E acetate — would be an “interim step,” Rositano said, “that could lift the ban sooner than later, that could protect those patients who are now going to the illicit market.”

After the meeting, the commission’s executive director, Shawn Collins, said the vape products would probably only return to store shelves once testing confirmed they did not contain vitamin E acetate, pesticides, heavy metals, or other potentially harmful contaminants. He noted the federal investigators’ finding that most illnesses have been linked to illicit products.

“The [quarantine] order I issued is not intended to cast any doubt or blame to the legal market,” Collins said. “The effort we’re going through now is to prove and demonstrate that the legal market is, in fact, safe — but also, we need to find that out.”

Collins said the commission is working with the state’s two licensed cannabis product-testing labs to ensure they are capable of detecting vitamin E acetate, then will proceed with testing the quarantined vaping products for potential toxins.