Judge orders rewrite of Massachusetts vaping ban within 7-days; THC vapes still not addressed

Just hours ago, Judge Douglas Wilkins of the Suffolk County Superior Court in Boston issued his ruling on the controversial Massachusetts vaping ban recently implemented by Gov. Charlie Baker.  The results were a mixed bag which resulted in the court demanding that the governor’s executive order be partially rewritten to account for some legal inconsistencies.

The plaintiffs, Ian Devine and Devine Enterprise Inc. and the Vapor Technology Association (VTA) challenged the statewide flavor ban as “executive over-reach, which violates state constitutional separation-of-powers principles, and its arbitrary and capricious.” They argue vape shops across the state will suffer “great irreparable harm’ and that no elected official should have the authority to singlehandedly abolish any product from the market without due process under the law.

Judge admonishes Gov. Baker, but does not temporarily halt the vape ban

Judge Wilkins agreed. In his ruling document, Wilkins openly blasted the Baker Administration on several counts., but he fell short of halting the vaping ban altogether.  The judge writes that a new document must be written in the form of an emergency regulation which must end no later than Christmas Eve, 2019.

Related Article: Montana becomes 4th state to temporarily halt vape ban; Will Massachusetts be next?

He then reprimands Gov. Baker for failing to hold public hearings – as is required by law – so that businesses and the Massachusetts citizenry can express their opinions.  Going even further, Wilkins also admonished the governor for not taking into consideration the potential negative financial impacts that a statewide vaping ban might have on local businesses.  He also questions whether the governor even considered the possible negative health consequences for adult vapers trying to quit smoking.

Related Article: Meet the judge who just put the KIBOSH on Michigan’s vape ban

Moving forward, Governor Baker now has until October 28 to rectify and clarify each of the court’s concerns.  Baker has just seven short days to hold public hearings, document the possible fiscal impacts that a vaping ban might have on hundreds of vape shops across the state, identify how a vaping ban might affect adults as well as teen vapers, and rewrite his executive order to be resubmitted as an “emergency regulation.”  While Judge Wilkins acknowledges that the vaping ban as-written is likely unlawful, he also worries that issuing an immediate restraining order might "contravene the public interest." 

"While the plaintiffs have shown a likelihood of success, the balance of harms weigh in defendants’ favor in some respects, and an immediate injunction against the entire order would contravene the public interest.  The court therefore allows the defendants an opportunity to cure the defects identified above."

However, since October 1, judges in New York, Oregon, Michigan, and Montana have already issued temporary injunctions regarding similar governor-instigated vaping bans.  What’s happening in the courts of Massachusetts is a bit outside the current judicial trend, not to mention that neither the judge nor the Baker Administration address the true public health threat that has allegedly claimed the lives of about 30 Americans – marijuana and THC-based vaping.

When asked for comment by The Boston Herald,  VTA Executive Director Tony Abboud issued the following statement.

“We are pleased that the Superior Court recognized that we are likely to prevail on our claims that the Emergency Order was improperly issued and arbitrary and capricious, as well as recognized ‘the great irreparable harm’ that the ban has caused to Massachusetts retailers.”
“We regret, however, the Court’s decision to allow this improper ban to stay in place for a week while the State considers other regulatory alternatives.  Based on the Court’s findings, the ban should be enjoined immediately, and we will be asking for that relief.”

Related Article: Another win: Oregon court blocks nicotine vapes ban; leaves THC-vapes ban in place

(Image courtesy of Shutterstock)

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