Mass. health panel moves to lift ban on nicotine vape sales, passes new restrictions

David L. Ryan/Globe Staff

The vape ban is over. But the old status quo isn’t coming back.

Massachusetts health officials on Wednesday lifted the state’s extraordinary three-month ban on the sale of vaping products, and imposed tough new regulations that will restrict access to high-potency and flavored nicotine vapes.

The end of the blanket policy — the only one in the country — followed months of controversy, including protests by vape businesses and consumers, plus rulings by a state judge calling the ban’s enactment unconstitutional. It also leaves lingering questions about the causes of a nationwide outbreak of vaping-related lung illnesses.

Retailers that post new health warning signs and meet other requirements were permitted to resume sales of unflavored nicotine vapes as soon as late Wednesday, authorities said, as new rules approved by the Massachusetts Public Health Council were being officially promulgated. Other restrictions will take effect in June, including a ban on the retail sale of menthol and mint cigarettes, plus a new 75 percent excise tax on nicotine vapes.

The changes don’t affect marijuana vapes, which remain quarantined by the state’s Cannabis Control Commission.

Monica Bharel, the commissioner of the Department of Public Health, hailed Wednesday’s votes as a victory against addiction.

“We are acting to protect public health,” Bharel told reporters following the council meeting. “What the regulations do is allow a regulatory and legal framework to limit the access to these products, put in place warnings and signage so people can understand their risk, and importantly, limit access for youth and young people.”

But critics immediately questioned how the changes address the explosion of vaping-related lung illnesses that originally prompted Governor Charlie Baker to implement the policy in September.

Some called the end of the ban a tacit admission by officials that nicotine vapes are not related to the lung injuries. But with Bharel herself insisting that nicotine vapes may still be to blame for some of the illnesses, others wondered why officials ended the ban.

Leo Beletsky, a professor of law and health sciences at Northeastern University, said the initial ban was a “knee-jerk” decision — and that the implementation now of seemingly unrelated tobacco control measures, warranted or not, threatened to erode public trust in health authorities.

“When engaging in regulation, we have to be driven by a careful consideration of what the problem actually is,” Beletsky said. “When politicians come out with solutions that don’t really map onto the source of the risk, it makes people skeptical.”

Beletsky and other critics have also hit Baker’s administration for its belated and confusing release of information about which vape products may have sickened consumers.

Baker told reporters Wednesday that restrictions on vape sales and required warnings called for in the state’s new tobacco control law “made it possible for us to eliminate the ban.” He acknowledged the major culprit in the illnesses appeared to be illicit-market marijuana vapes, although some patients reported consuming regulated nicotine and cannabis products.

“We have more information about what the cause was for much of this originally, but there’s obviously a lot more knowledge to be gained,” Baker said.

The US Centers for Disease Control and Prevention have zeroed in on vitamin E acetate, an additive used mainly in illicit marijuana vapes, as the primary culprit behind the lung illnesses that have stricken nearly 2,300 Americans and killed at least 48.

However, the CDC warned there may be multiple causes, and the investigation continues.

So far, 90 Massachusetts residents have fallen ill with probable or confirmed cases of vaping-related lung illness, and three have died.

Some health experts defended the ban, saying it decreased availability of potentially dangerous products, increased awareness of their risks, and boosted access to nicotine-quitting aids like patches and gum.

“It did tremendous good,” said Dr. Sharon Levy, an addiction specialist at Boston Children’s Hospital who along with other doctors met with Baker before he decided to enact the emergency ban. “We probably saved, or at least delayed, a whole bunch of kids getting on these.”

Some store owners had already resumed selling unflavored nicotine vape products Wednesday morning, saying they heard the ban was lifting that day and the state never told them anything else.

One, Behram Agha, owner of Vapor Zone in Saugus and Danvers, said the ban forced him to lay off nine of his 11 employees and permanently close two stores, in Ipswich and Norton.

“The customer came in and the first words were: ‘I don’t want to drive to New Hampshire,’ ” Agha said. “I said, ‘I’m glad you don’t have to deal with this burden anymore. We are open and welcome back.’ . . . Every penny will provide some relief for us.”

Nicotine vape users praised the return of the products they said provided them a less harmful alternative to traditional cigarettes, and noted that a rapid decline in sales of traditional cigarettes slowed for a period after the ban started (though they dropped in the ban’s second month).

Nationally, the vaping industry and its consumers wield some power — President Trump scrapped plans to ban flavored vapes over fears of job losses and blowback by ex-smokers posting online #IVapeIVote.

But in Massachusetts, observers said, the vape sales ban could help Baker, appealing to suburban, educated voters concerned about youth vaping. A WBUR poll in October found 66 percent of voters approved of the policy.

Baker last month decided to end his emergency ban early after the Legislature passed a law aimed at curbing an alarming rise in youth vaping: In Massachusetts, 32 percent of high school students reported vaping, one of the highest rates in the nation, health officials said.

“Last year it just exploded,” said Mary Clougher, a Holbrook Middle High School teacher whose students pushed for the new law. This year, she said, “kids are still getting hold of things in different ways, but it’s not like it used to be.”

The new law allows the sale of flavored nicotine vapes only for onsite consumption at licensed smoking bars.

It also restricts the sale of vaping products with high levels of nicotine to licensed adult-only tobacco stores and smoking bars. Unflavored vaping products with lower nicotine content can be sold in convenience stores and gas stations. Sellers who violate those provisions face significant fines.

As for legal marijuana vapes, a cannabis commission spokeswoman said Tuesday a quarantine will remain in place while the agency tests the products for safety.

While aimed at protecting public health, the emergency ban inflicted wide-ranging collateral damage.

The state estimated the policy cost vaping businesses millions of dollars, and several reported layoffs and closings. Sales boomed at vape stores along the border in New Hampshire.

Medical marijuana patients, meanwhile, flocked to cannabis dispensaries in Maine as they scrambled to find replacements for products they had relied upon to treat chronic pain and other ailments.