On Monday, a state Superior Court judge gave the Baker administration just what public health authorities need as they respond to a mysterious national outbreak of vaping-related illnesses and deaths: time.
In a widely anticipated decision, Judge Douglas H. Wilkins let the state’s temporary ban on all vaping products stay in place, though he made clear that the administration would need to jump through more legal hoops quickly if it wants to keep it.
The reprieve gives researchers more time to figure out what is causing the deaths, and gives the Commonwealth more time to take a hard look at its laws and regulations around vaping. Yes, carefully regulated nicotine vaping can be a smoking-cessation tool for smokers who are already hooked on tobacco. But vaping products don’t belong back on shelves until we have a fuller understanding of the health risks of vaping products, and stricter limits on the industry to discourage children from vaping.
Vaping devices, also known as e-cigarettes, turn nicotine or THC (the key ingredient in marijuana) into a vapor that users inhale. Unlike ordinary cigarettes, vaping doesn’t pump users full of carcinogens or create second-hand smoke. Until the outbreak, vaping was widely perceived as a safer alternative to smoking tobacco or marijuana.
That’s no longer so clear. The administration imposed the emergency ban last month in response to the outbreak, which has killed 33 people in the United States and sickened thousands more. The deaths include one victim in Massachusetts, a woman in her 60s from Hampshire County.
Researchers haven’t figured out exactly what caused the deaths, and solving that medical mystery needs to remain a public-health priority, with the funding to match. Some of the victims report that they vaped nicotine, some THC, some both. The Massachusetts victim had said she vaped nicotine.
The vaping industry has argued that the suddenness of the outbreak suggests that nicotine vaping, which has been widespread for years, can’t be to blame. They could be right: It may well turn out that black-market THC vaping products caused most of the sicknesses, and that some of the victims who reported using only nicotine were unwilling to admit to using THC, which is illegal in many states. The CDC now says illicit THC products are “linked to most of the cases and play a major role in the outbreak.” But, as Wilkins noted in the ruling, it’s also possible that vaping illnesses from nicotine have been occurring for years undetected.
Wilkins cited that uncertainty as he upheld the ban. “There is serious potential harm to individuals and the public if it does turn out that lawful nicotine-vaping is a factor in causing the current outbreak,” he wrote.
The judge did lambaste the administration for failing to seek public comment before imposing the ban and required it to hold a public hearing. A spokeswoman for Baker said the administration believes the order was properly issued, and “will work with the attorney general’s office on next steps.”
The outbreak has put the e-cigarette industry — and the federal regulators who let it flourish without much supervision — in a harsh spotlight. It’s now clear that e-cigarettes can be harmful, and that laws need to catch up with their popularity.
One change the Legislature could embrace is a ban on nicotine vapes with flavors other than tobacco. Mint or strawberry-flavored vaping products appeal to kids, and the tobacco industry has a history of pitching menthol products to minorities. Those flavors aren’t needed for smokers who want to use e-cigarettes as a smoking substitute. The state should also raise taxes on e-cigarettes and make sure that labeling reflects the health risks.
In his ruling, Wilkins expressed some skepticism about the ban on nicotine vaping products, in light of the bigger role that illicit THC vapes appear to have played in the outbreak. The temporary ban on nicotine vaping shouldn’t become permanent unless the CDC’s findings end up pointing in that direction. But when e-cigarettes do reappear, it should be with a more careful regulatory framework that takes into account their potential harm; labeling that warns of the dangers; and safeguards against pitching the products to minors.