‘I’m not going to give up’: More Mass. vape shops expected to join lawsuit against statewide sales ban

"People have livelihoods. People have kids. We have families."

–Steve Helber / AP, File

Outraged that a ban on all sales of vaping products in Massachusetts will cripple their businesses, more vape shop owners are expected to join a lawsuit against state officials alleging they failed to properly follow state law, their attorney said Friday.

“I’m not going to give up,” Dena Chance, owner of Boston Vapor in Revere, a business that’s signing onto the complaint filed in Suffolk Superior Court this week, told Boston.com. “I’m fighting. This is terrible.”

Declaring a public health emergency Wednesday, Gov. Charlie Baker announced all retail and online sales of nicotine, flavored, non-flavored, and marijuana vaping products were immediately prohibited amid a nationwide outbreak of vaping-associated lung illness.

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The ban, ratified by the Massachusetts Public Health Council, will last through January, 25, 2020.

The move has rattled and infuriated owners of vaping businesses.

Many operate independent chains and mom-and-pop shops. They fear they’ll have to close their doors for good.

“It’s terrible,” said Chance, frustrated that after about seven years in business, her shop’s shelves are now completely empty. “People have livelihoods. People have kids. We have families. I’m a mom. He just took food out of my kid’s mouth.”

On Thursday, Vapor Zone in Danvers led the charge by filing a complaint against state officials involved in the decision in Superior Court.

According to the filing, the business is seeking for a judge to quickly lift the sales ban on the basis that the government failed to provide findings to support why a health emergency was needed, as required under law.

The lawsuit also argues the ban is unenforceable and “arbitrary and capricious.”

“These independent vaping shops, they’re going to be done,” said attorney Craig Rourke, who represents Vapor Zone. “This is it for them.”

Behram Agha, the owner of Vapor Zone, said Friday all four of his stores are closed and he’ll have to lay off his 11 employees as a result of the ban.

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“We have no sales,” Agha said in an interview. “It’s hard to upkeep. There’s all the overhead and everything. It’s chaos right now.”

Agha said state officials should have held a public hearing on the issues.

Out of options, he filed the complaint as a last resort, he said.

“No notice was given or anything, or a timeframe,” Agha said of the ban. “It was just all of a sudden, no more. Seven years of hard work gone in five minutes, done.”

Rourke was slated to meet with more businesses Friday who were interested in joining the lawsuit like Chance, he said.

He anticipated the case to grow to include owners representing some 50 impacted stores by the end of Friday.

The plaintiffs will likely tailor the initial complaint and scale down the list of defendants to include only Baker and Monica Bharel, commissioner of the state Department of Public Health, in their official roles, Rourke said.

The initial complaint filed Thursday names DPH, Bharel, and members of the state Public Health Council as defendants.

The store owners are also eyeing taking their case to federal court, Rourke said.

The ban raises constitutional concerns, particularly over whether Massachusetts has the authority to ban a product regulated by the federal Food and Drug Administration, according to Rourke.

The FDA’s Center for Tobacco Products was given regulatory authority for all vapes, e-cigarettes, e-liquids, and other components in 2016.

Rourke said there may be some precedent for the lawsuit.

He pointed to when the federal government shot down an effort by then Gov. Deval Patrick to halt sales of a painkiller that was regulated and approved by the FDA in 2014.

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Many vape businesses opened their doors to help people find an alternative to combustible cigarettes, Rourke said.

“They got into it … for good reasons, to get people off of cigarettes and away from all of the health problems that come from smoking cigarettes,” he said.

Baker has defended his decision, even as the complaint was filed in court Thursday.

He said “to do nothing was just not a viable option.”

“I totally get that there is disruption associated with this, but compared to the rising number of people who are perfectly healthy but have this terrible debilitating injury to their lungs, or in fact are on the verge of dying, it seemed like the right choice,” Baker told the Boston Herald. “It’s not about anything else. It’s not about nicotine, it’s not about marijuana, it’s about vaping.”

A spokesperson for DPH said Friday the department does not comment on pending litigation.

According to the Centers for Disease Control and Prevention, 805 lung injury cases had been reported in 46 states and one United States territory as of Friday afternoon. Twelve people have died in 10 states.

Out of 514 cases, most patients reported using products containing Tetrahydrocannabinol or THC — an active chemical in marijuana — although many said they used nicotine-containing products as well.

Investigators have been probing illicit THC vaping products sold on the black market as a possible cause, although the CDC has not determined a single product or chemical that’s behind the illnesses.

Products sold by his clients are certified by laboratories licensed by the state, Rourke said.

Chance, who also owns Hot Spot Tanning that houses her vape shop, said she considers herself fortunate. Having another business will help her cover the bills during the ban.

Other shops, though, are facing bankruptcy, she said. Chance predicts a ripple effect will spread to other branches of the industry, too, like manufacturing and distribution.

“We’re all in,” she said of the lawsuit. “What he did to us is illegal.”

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