Judge: State's ban on vaping product sales can remain in place

BOSTON — A state judge on Monday allowed Massachusetts' four-month ban on the sale of all vaping products to remain in effect but said Gov. Charlie Baker had failed to follow required procedures in enacting the measure.

Immediately lifting the ban as requested by the vaping industry "would contravene the public interest," Suffolk Superior Court Judge Douglas Wilkins wrote in his decision.

But he said unless the state goes through the proper procedure for the adoption of an emergency regulation, which requires a public hearing, the ban will end next Monday.

"Input from affected industries and members of the public is a potent safeguard against executive abuse of discretion," Wilkins wrote.

On Friday, three doctors testified in a hearing over whether to lift the state's 4-month ban on vaping products.

The ban, which went into effect on Sept. 24, was issued after Governor Charlie Baker declared a public health emergency concerning the recent vaping-related deaths and illnesses nationwide.

"We always said that we knew the courts were probably going to be part of this process," Baker said in response to Monday's decision. "But for us the public health issues associated with this outweighed the negative consequences, which are real, and we understand that associated with the ban in the first place."

A spokeswoman for the governor says the administration will work with the state attorney general's office on the next steps.

>> Read the full decision here

Tony Abboud, the executive director of the Vapor Technology Association, said in a statement he was pleased the judge recognized that the organization is likely to prevail in court.

"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," he said.

Multiple companies are currently suing the state, saying the emergency ban has caused irrevocable damage to their businesses.

Following the ban, several vape shops around the state were forced to close down and were not allowed to sell their inventory.

The state maintains that the rise in acute pulmonary lung injuries led to its emergency ban, and that the ban was needed to allow officials time to investigate what exactly is causing all these issues.

>> MORE: Latest vaping news in Mass. and across the country

Businesses, lawyers and pro-vaping advocates are pointing to recent CDC data that shows black-market cartridges are the root of the issue, saying that, if regulated and tested properly, vaping poses no major health risks.

Doctors who testified at Friday's hearing, however, said vaping products in general cause harm, and we don't have enough information on them to make an informed decision.

"We’re seeing this approach in multiple states where there approach is let’s just get rid of e-cigarettes or let’s just get rid of flavored cigarettes but that’s not what’s causing the problem at some point we have to acknowledge that we have a marijuana problem," said Dr. Michael Siegel, a professor at Boston University.

Recent data, however, shows many patients hospitalized with vaping-related illnesses had been vaping THC and nicotine, where oftentimes both substances were mixed in the same cartridge. It's worth noting that, in states where marijuana is legalized, THC cartridges sold do not contain nicotine.

"We will not have the data of the long term use of electronic cigarettes for many, many years from now, what that is going to cause and I don’t know if these patients are going to get completely better - the ones that have had this acute damage," said Dr. Alicia Casey, a doctor at Boston Children's Hospital.

While it's hard to compile numbers on the black market, as soon as the ban went into effect vape users turned to illicit cartridges bought off the internet and off the streets as well as neighboring states where vaping had not been banned to purchase their products.

Medical marijuana patients who used vape cartridges as their primary means to use their medicine are hoping the state will go back on its decision to ban vape products.

In a response to medical marijuana patients, Baker said, "There are many alternative uses available to people who currently have prescriptions for medical marijuana and they should pursue those."

The Associated Press contributed to this report. 

MORE: Vaping-related illnesses still rising, though at slower pace

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