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The Massachusetts vaping sales ban isn’t going anywhere for the time being

The ban cleared an initial challenge in federal court Friday.

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Despite condemnation from vape shops across the state, Gov. Charlie Baker’s sales ban on all vaping products is not going anywhere for the time being.

U.S. District Court Judge Indira Talwani said Friday she was “leaning toward” denying a request for a temporary restraining order to stop the measure proposed by the Vapor Technology Association in a lawsuit filed this week, Reuters reports.

Talwani is slated to consider a preliminary injunction also aimed at ending the ban at an Oct. 15 hearing.

But at Friday’s hearing, Talwani was not convinced an immediate halt to the four-month ban was necessary, according to MassLive.


She was expected to issue a written decision denying the requested order Friday afternoon.

“You’re saying I ought to be more concerned about the economic harm to businesses for a two-week period than the potential people who will end up in the hospital during this two-week period?” she asked Joseph Terry, an attorney representing the Vapor Technology Association.

Two federal lawsuits have been filed against Baker and Monica Bharel, the commissioner of the sate Department of Public health, who announced the ban on Sept. 24 as they declared a public health emergency amid the national outbreak of vaping-related lung injuries and deaths.

The ban, which lasts until Jan. 25, 2020, immediately halted all retail and online sales of nicotine, flavored, non-flavored, and marijuana vaping products.

Vape businesses across the state, including a handful that filed one of the lawsuits, say they were blindsided by the measure and that it will likely put them out of business.

“It’s bull****. I thought we live in America. We have rights,” Jeffrey Vick, co-owner of Vick’s Vape Shop in Medford, one of the stores that’s suing state officials, told reporters outside the courthouse Friday. “We don’t got no rights.”

Vick, and several other shop owners, in their lawsuit have argued that the ban is unconstitutional because it usurps the federal Food an Drug Administration’s authority to regulate vaping products and also interferes with interstate commerce.


Many have also said the ban fails to address products containing Tetrahydrocannabinol, or THC, being sold on the black market that investigators are probing as a potential cause for the lung injury outbreak.

In court Friday, Terry said there is no evidence that the nicotine products legally sold in stores are to blame, MassLive reports.

“This is like you had people who went blind from drinking moonshine and you ban all alcohol,” Terry said.

Still, prosecutors noted that a specific chemical or product has not yet been linked to the illnesses, according to the news outlet.

“We don’t know what is causing these Americans to have to be hospitalized,” Assistant Attorney General Julia Kobick said.

On Thursday, the Centers for Disease Control and Prevention said as of Oct. 1, 1,080 lung injury cases associated with vaping products had been reported in 48 states and 1 United States territory, with 18 confirmed deaths across 15 states.

Most patients reportedly used products containing THC, according to the CDC.

MassLive reports Talwani, in order to remove the sales ban, would need to find that the measure is creating irreparable harm to the plaintiffs.

They sought for Talwani to lift the ban until a hearing for a preliminary injunction is held where they could make their case against it with more evidence and witnesses, according to the outlet.


“My clients told me we are going to go out of business in the next couple of weeks if there’s not a resolution to this,” Terry said, according to USA Today.

Kobick said there is a “modest burden,” at most, on interstate commerce because of the ban, but it’s “balanced against a very vital public health interest at stake in preventing more deaths and injuries from these illnesses,” according to the news outlet.

She said Baker and Bharel have the power to call a public health emergency for “precisely these circumstances” where the cause of an illness is not yet known.

The day in court came just after nearly 100 people took to the State House Thursday to protest the sales ban, where they called on Baker to reconsider.

“You’ve got the holidays coming up in a month or two so this is a bad time,” Michael Sheen, an e-liquid distributor, told Boston 25 News. “People have families.”