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Lawsuits & Litigation

Vape Shops and E-Cigarette Retailers Sue New York, Massachusetts

— October 7, 2019

New York and Massachusetts are facing lawsuits from enraged e-cigarette retailers, who say that statewide vaping bans will put them out of business. They’re seeking separate, state-specific injunctions against the crackdown on flavored vape products.

In September, New York became the first state in the U.S. to restrict the sale of flavored e-cigarettes and nicotine pods. It was enacted by Gov. Andrew Cuomo, a Democrat, who used emergency powers to cut vape sales. He later expanded the ban to include menthol-flavored products, too.

Since then, vape shops and other e-cigarette retailers have pushed back against Cuomo, filing suits against his administration and prohibition.

According to CNN, store owners in New York have won small victories against the state. Last Thursday, an appellate court issued a temporary restraining order against Cuomo’s executive action. While they’ve yet to shrug off the e-cigarette ban in full, they’re free of it through at least 18 October, when the New York Supreme Court has scheduled a hearing to address the preliminary injunction.

A Juul-made e-cigarette. E-cigarettes are purportedly popular with teens, another point of contention between the industry and FDA. Image via Wikimedia Commons/user:Mylesclark96. (CCA-BY-4.0).

While e-cigarette proponents have condemned New York and Massachusetts’ bans as pre-emptive and harmful—especially to adult users who’ve taken up vaping in place of smoking—state officials have dug their heels in. New York State Health Commissioner Dr. Howard Zucker issued a statement echoing a common refrain, claiming that vape producers intentionally advertise to kids.

“It is undeniable that the vaping industry is using flavored e-cigarettes to get young people hooked on potentially dangerous and deadly products,” Zucker said. “While the court’s ruling temporarily delays our scheduled enforcement of this ban, it will not deter us from using every tool at our disposal to address this crisis. Make no mistake: this is a public health emergency that demands immediate action to help ensure the well-being of our children, and we’re confident that once the court hears our argument they will agree.”

Cuomo has also signed legislation that’d raise the age to purchase tobacco and e-cigarette products from 18 to 21.

Antipathy and suspicion of vaping is the odd sentiment to have crossed party lines. The Trump administration is also pondering federal action against e-cigarettes, which may include a nationwide ban on most flavored products.

In Massachusetts, Republican Gov. Charles Baker declared a public health emergency, stopping online and retail sales of all nicotine and marijuana vaping products in their tracks. The ban will last for at least four months.

U.S. District Court Judge Indira Talwani has scheduled a hearing to rule on a preliminary injunction for 15 October. In the meantime, though, Talwani has backed the state, ruling against a restraining order on Friday.

It’s a dilemma that small business owners say is costing them big money. Massachusetts e-cigarette retailers have estimated losses between $4,000 and $5,000 per week, per store. Many have had to lay off employees; some have already gone out of business.

Nevertheless, Gov. Baker’s office isn’t willing to relent. They’ve cited recent Center for Disease Control reports indicating a sharp uptick in confirmed cases of vape-related illnesses across the country.

“The Baker-Polito Administration will continue working with medical experts and federal and state officials to better understand why vaping is causing lung-related illnesses and consider all options as next steps,” Baker’s office said in a statement. “Understanding the temporary ban has been difficult for some businesses, this order provides clarification based on feedback received from industry stakeholders and local boards of health, and DPH will continue to offer guidance if necessary.”

CNN notes that vape-related illnesses have affected over 1,000 people across the country, while deaths have been reported in 18 states.


Vape store owners are suing to stop the product bans in New York and Massachusetts

Vape shop owners file federal lawsuit against state over Gov. Baker’s ban

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