Governors Take Executive Action to Restrict or Ban Flavored Vapor Products

State moves raise similar legal issues
Charlie Baker
Photograph courtesy Gov. Charlie Baker

LAKEVILLE, Minn. — During recent weeks, several U.S. governors have announced emergency executive actions to restrict or ban the sale of flavored nicotine vapor products. In Massachusetts, Gov. Charlie Baker took things one step further and temporarily banned the sale of all nicotine vapor products. Each of the respective state actions raises similar legal issues.

Normally, to change the law, the legislative process must be engaged. Legislators propose bills, legislative committees hold public hearings and take public testimony, and committees and full legislatures consider amendments to bills as introduced. Bills that are favorably passed in the legislature are sent to governors who can either sign them into law or veto them. In the recent cases, however, governors are exercising emergency powers to circumvent the normal legislative process.

The latest governor to take executive action targeting nicotine vapor products is Washington Gov. Jay Inslee, who last Friday issued an executive order directing the Washington State Board of Health to draft emergency regulations prohibiting the sale of all flavored electronic nicotine devices, including flavored THC (cannabis) cartridges. Inslee’s action is the first to target THC cartridges that increasingly appear to be at the center of controversy regarding a recent and serious outbreak of lung problems resulting in at least eight deaths. The U.S. Food and Drug Administration (FDA) has specifically warned consumers about THC vapor cartridges and the U.S. Centers for Disease Control and Prevention (CDC) recently issued a similar warning about THC cartridges.

Other states that have taken executive action to ban or restrict flavored vaping products include Michigan and New York. On Sept. 4, Michigan Gov. Gretchen Whitmer announced an emergency order to ban flavored nicotine vapor products. New York Gov. Andrew Cuomo announced an emergency rule to ban the sale of flavored nicotine vapor products Sept. 17, and the action prompted a quick legal challenge brought by the Vapor Technology Association and affected New York businesses. Last Friday, a New York Supreme Court judge (the Supreme Court is the district court in New York) rejected plaintiffs’ request for a temporary restraining order enjoining immediate enforcement of the law.

On the day after Baker announced an emergency ban on the sale of vapor products in Massachusetts, Rhode Island Gov. Gina Raimondo followed with an executive order banning the sale of flavored e-liquids and products containing e-liquid. Previously, in announcing actions he would take to address underage vaping, California Gov. Gavin Newsom stopped short of attempting to ban flavored products by executive order. He indicated that while he personally favored a ban on flavored vapor products, he had been advised by legal counsel that he did not have authority to enact such a ban without legislative action.

Newsom’s interpretation of law in California gets to the crux of the issue likely to be at the center of litigation surrounding cases in different states. Short of legislatures overturning executive action, courts are likely to determine the scope of executive authority and whether that authority was exercised appropriately.

Thomas Briant is the executive director of NATO, a tobacco retailing association based in Lakeville, Minn. Reach him at info@natocentral.org.

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