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SJC declines to decide whether Baker overstepped his executive powers on vape ban

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Now that nicotine and marijuana vaporizers are back on store shelves in Massachusetts, the Supreme Judicial Court declined Thursday to rule whether Governor Charlie Baker’s administration overstepped its executive powers in temporarily banning the sale of the products this fall amid an outbreak of a deadly lung illness.

The new order, which vacated the case’s prior rulings and cleared it from the courts’ dockets, marked the official end of the legal wrangling over Baker’s ban, which lifted Dec. 11 after nearly three months. Unflavored nicotine vapes and marijuana oil vapes went back on sale Dec. 11 and Dec. 19, respectively, under new rules.


Calling the controversy “moot,” the Supreme Judicial Court said it would be “neither necessary, nor wise, for this court to weigh in” on the scope of executive powers in a case initiated by a vaping industry group.

Appeals courts often try to avoid ruling on constitutional issues if the matter is otherwise resolved because of the potential far-reaching implications for other laws and court cases, legal observers said.

“The questions remain open,” said Rene Reyes, a constitutional law professor at Suffolk University Law School. “In some ways, that may feel dissatisfying or unsatisfactory, but it’s not at all uncommon for courts to avoid consitutional questions.”

The lawsuit seeking to lift the ban was initially filed by the Vapor Technology Association, a group representing nicotine vaping businesses, which argued the ban irreparably harmed their livelihoods. Medical cannabis patients later joined the lawsuit, saying the ban hurt their ability to treat serious conditions with the medicine they felt worked best.

Superior Court Judge Douglas H. Wilkins ruled Oct. 21 that the Baker administration overstepped its authority in banning the product sales without first taking other steps such as allowing the public to comment on the policy’s effects in a hearing. Baker’s administration then filed the ban as an emergency regulation and held a public hearing. Wilkins did not rule against the ban in that form.


The Supreme Judicial Court said it didn’t need to rule on the executive powers question, given that the ban was over and policymakers acted to address the public health threat posed by vaping.

The Legislature passed a law restricting the sale of flavored nicotine vapes and the Department of Public Health issued new regulations. The Cannabis Control Commission added testing requirements for a contaminant, vitamin E acetate, which was identified as the main culprit in the illnesses, which officials said sickened 105 people and caused three deaths in Massachusetts. Nationwide, federal officials say, 2,500 people have fallen ill and 54 have died.

The court said the question over whether the governor should be allowed to exercise those powers had become moot and theoretical, and likely wouldn’t recur in this situation. The scope of the governor’s executive authority has rarely been challenged since the law empowering the governor to act to protect public health during health emergencies was enacted in 1965, the court noted.

The SJC said that occasionally judges rule on moot cases because of “significant public interest in deciding those cases,” but that’s within judicial discretion. In this case, the court declined to take up the case because of a longstanding tradition, under case law, of “not unnecessarily deciding constitutional questions.”


“We recognize that this case presents complex questions of administrative and constitutional law that are of significant public interest,” the court said. “In part, it is the purportedly constitutional scope of these issues that compels us to act with restraint here.”

In future public health emergencies, Reyes said, the governor’s administration is likely to hold a public hearing and follow the emergency regulation process that Wilkins ordered, even though Wilkins’ order is no longer legally binding.

“The mere fact a Superior Court judge did identify those kinds of problems in the governor’s actions ... is likely to be part of the political conversation, even if it’s not embedded as a constitutional requirement,” Reyes said.

But the Baker administration said in a statement that the Supreme Judicial Court’s order means the Superior Court’s decisions will have no legal effect on future executive actions under the public health emergency law.

The administration stood by its initial decision, saying it provided time for policy leaders to better understand what made people sick and to act to protect public health.

“The new regulatory framework approved by the Public Health Council this month will ensure risks are known to consumers, clarify what interventions DPH can take to address clear risks identified by the developing science, and ensure sellers are not skirting the new law and selling to kids,” said Terry MacCormack, a Baker spokesman.

Meanwhile, Will Luzier, a former assistant attorney general and one of the medical marijuana patients who joined the lawsuit against the ban, said he felt the Superior Court judge’s ruling that cannabis policies fall under the Cannabis Control Commission’s purview, not the governor’s, would still carry weight. Baker said in November he would leave cannabis-vaping policies to the commission.


That, Luzier said, is “the best thing that comes out of this, from the point of view of cannabis consumers.”

Naomi Martin can be reached at naomi.martin@globe.com. Follow her on Twitter at @NaomiMartin.