LAKEVILLE, Minn. — During recent weeks, nicotine vapor businesses and national vaping organizations have filed legal challenges to emergency orders issued by governors around the country banning the sale of flavored vapor products or, in the case of Massachusetts, banning the sale of any nicotine vaping product. The legal challenges have been filed in all eight states where governors have chosen to avoid the legislative process and instead take executive action to restrict vaping sales in response to concerns about youth vaping and an outbreak of lung problems that increasingly appear to be related not to legal nicotine vaping products but instead to illicit THC (tetrahydrocannabinol) or similar illicit products.
Thus far, governors in Massachusetts, Michigan, Montana, New York, Oregon, Rhode Island, Utah and Washington have taken emergency executive action to restrict vaping. Legal challenges, primarily in state courts, have been filed challenging the scope of executive authority as applied to implement executive legal action rather than work through the typical legislative process to enact new laws. Most recently, Superior Court Judge Douglas Wilkins in Suffolk County, Mass., indicated in a lengthy decision that the lung injuries that preceded Gov. Charlie Baker’s order to halt all nicotine vapor sales appear to be tied convincingly to THC vaping products, not to legal nicotine vaping products. Judge Wilkins wrote “the record includes no verified or confirmed data about exclusive nicotine use.” Wilkins added that “the credibility of the self-reports on that issue is seriously in question and may be unreliable for purposes of banning an entire industry.”
A Massachusetts appeals court has denied Baker’s motion for a stay of the lower court order and the governor has now proceeded with implementing a proper emergency regulation, which means the ban on the sale of all vaping products remains in place.
The rulings that have come down in other states thus far have all been in favor of vapor industry plaintiffs challenging the governors’ use of executive authority. In the first state to ban flavored vaping products, a Michigan state court ruled in favor of the suing parties, granting their preliminary injunction and prohibiting the state from enforcing Gov. Gretchen Whitmer’s ban on flavored vaping. Last Friday, Whitmer filed an application for emergency leave with the Michigan Court of Appeals and asked the Michigan Supreme Court to take the case directly.
In other states, courts have decided in favor of the plaintiffs and issued temporary restraining orders prohibiting enforcement of the emergency rules or have yet to act. Plaintiffs have been granted temporary restraining orders by courts in Montana, New York and Oregon. In the three remaining states where governors have issued emergency orders (Rhode Island, Utah and Washington), lawsuits have been filed seeking temporary restraining orders and injunctions against the emergency rules. A hearing on the Washington rule was scheduled for Oct. 28.
Arizona Gov. Doug Ducey indicated that he didn’t believe banning flavored vaping products was the right course of action to take. In California, Minnesota and Ohio, governors indicated that issuing such orders would exceed their legal authority.
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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