Judges Block Flavor Bans

Statewide Flavor Bans Are Going Up in Smoke

October 31, 2019

If you’ve been keeping up with the latest news surrounding vaping bans, you may have noticed a shift in headlines from “Governor Issues Emergency Ban on Flavored Vaping Products” to “Judge Blocks Flavored Vaping Ban”.

Yes, you read that correctly. The same domino effect of statewide emergency flavor bans sweeping across the U.S. has now reversed directions.

The Domino Effect of Flavor Bans Across the U.S.

Armed with the youth vaping “epidemic” and an outbreak of “vaping-related lung illnesses in recent months, state governments have been overstepping authority by issuing executive orders to enforce flavor bans for vaping products. From New York to Montana, judges are now blocking states from using executive orders to enforce bans on flavored vaping products.

First up is New York.

New York Judge Temporarily Halts Flavor Ban

On October 4, New York was set to become one of the first states to enforce an emergency ban on flavored vaping products; however, that ban came to a halt just one day before it was set to take effect.

On October 3, New York’s flavor ban was temporarily barred from being enforced following a New York State Court of Appeals ruling. The ruling was in favor of a lawsuit filed by the Vapor Technology Association (VTA) and local vaping businesses which argued for a preliminary injunction on the ban.

The flavor ban will remain on hold until a ruling on the motion for a preliminary injunction is determined, which was scheduled for October 18; however, there appears to be no new updates.

Michigan Judge Blocks Emergency Flavor Ban

In September, Michigan became the first state to propose an emergency ban on flavored vaping products in the midst of the lung illness outbreak. Armed with the outbreak and “youth vaping epidemic”, Governor Gretchen Whitmer issued an executive order to enforce an emergency flavor ban which officially took effect on October 2; however, a court of claims judge halted the ban just a couple of weeks later.

In the October 15th ruling, Court of Claims Judge Cynthia Diane Stephens, citing evidence suggesting that adults could return to smoking more harmful tobacco products and that the “harm done to vape businesses, which would have to shut down because of the ban, outweighs the interest in stopping youths from using the products.”

The Whitner administration has also been under fire for its failure to acknowledge the link between lung illness cases and counterfeit THC vapes and instead focusing on banning flavored nicotine. Regardless, Whitmer has stated intentions “to seek an immediate stay and go directly to the Supreme Court to request a quick and final ruling”.

Until then, Michigan’s flavor ban will remain on hold.

Oregon’s Flavor Ban Blocked One Week After Approval

On October 17, the state of Oregon was temporarily barred from enforcing a flavor ban less than a week after its approval. An immediate temporary stay against the ban was issued by the Oregon Court of Appeals following a case brought on by the VTA and a group of vaping businesses

In defense of the ban, the Oregon Health Authority issued a statement claiming the ban is meant to be an “evidence-based strategy to prevent youth, as well as adults attracted to flavors, from becoming exposed to the health risks from vaping products and from becoming addicted to nicotine.” The health authority also stated it will continue its initiatives to permanently ban flavored vaping products, increase oversight of the industry, and discourage vaping.”

Montana’s Flavor Ban Under Temporary Restraining Order

On October 18, just one week before Montana governor’s emergency statewide flavor ban was set to take effect, a district judge issued a ruling temporarily barring the state from enforcing the ban.

The ruling came as a temporary restraining order in favor of a lawsuit brought on by the Montana Smoke Free Association and local vaping businesses who argued that the majority of vaping-related issues were associated with THC vapes, not flavored nicotine. They also argued that a ban would not only cause harm to those who rely on e-cigarettes to avoid smoking, but would also force them out of business as the majority of their sales come from flavored nicotine products sold to legal adults

Montana’s flavor ban remains on hold until a hearing, which was scheduled for October 30.

Utah’s Flavor Ban Overturned by District Court

Utah was set to become the next state to enforce a flavor ban on Monday, October 28; however, that same day the emergency ban was overturned in a ruling by 3rd District Court Judge Keith Kelly.

The ruling came as an emergency restraining order in favor of a lawsuit filed against the department of health by a group of vape shops for implementing the rule without public comment, citing that the ban would impose irreparable harm to their businesses.

The judge agreed that the Utah Department of Health overstepped its authority by implementing the emergency rule rather than following an administrative rule making process, and granted the emergency restraining order, which is scheduled to lapse November 22 when both sides will return to court for a preliminary injunction hearing.

Not All States Have Jumped on the Flavor BANdwagon

While some states have been using their authority to enforce emergency flavor bans, others have been declining – even California.

California Governor Declines Emergency Flavor Ban

Being known as one of the biggest “nanny states”, California quite surprisingly did not jump on the flavor BANdwagon. When approached with a proposed emergency flavor ban, Governor Gavin Newsom stated that, although he’d like to do so, he cannot take executive action without legislative support. Instead of a ban, the governor announced a campaign to crack down on counterfeit electronic cigarettes and youth vaping.

In the meantime, California cities have been taking matters into their own hands with San Francisco at the forefront of enforcing strict regulations.

In 2017, San Francisco became the first city to propose a flavor ban, which passed and took effect in 2018. In April of this year, Sacramento joined San Francisco with a ban on the sale of flavored tobacco products within city limits, set to take effect January 2020.

Then in June, Beverly Hills made headlines when the city council voted to ban the sale of all tobacco products within city limits by 2021, with a few exceptions, such as a cigar club frequented by celebrities.

In July of 2019, San Francisco took back the headlines when the city took its flavor ban a step further by banning the sale of all vaping products within city limits, including shipments from online sales, while leaving cigarettes untouched. The ban is set to take effect in January 2020 unless voters vote “No” on the ballot for Proposition C in November, which a superior court judge ordered to reword following a lawsuit challenging the wording on the ballot to be misleading.

Tennessee Governor Also Declines Enforcing Statewide Flavor Ban

Tennessee Governor Bill Lee is another to decline using executive authority to enforce a ban on flavored vaping products, stating he wants to see a clearer picture of the issue surround vaping-related illnesses before the state takes action. The governor acknowledged that the recent vaping-related deaths have come well after vaping became prominent and that he is not prepared to take action until further research and understanding.

Iowa is Another State to Avoid a Flavor Ban

Iowa Governor Kim Reynolds also declined using an executive order to enforce a flavor ban, stating that other statewide flavor bans are being overturned and acknowledging that the majority of vaping-related illnesses were linked to illicit THC cartridges.

Instead of a ban, the governor plans to reconsider raising the legal purchase age for vaping products from 18 to 21 as part of the Tobacco 21 initiative and has asked the Departments of Education, Human Services and Public Health to coordinate social media campaigns to raise awareness about the dangers of vaping.

Illinois Pushes the Flavored Tobacco Ban Act

While Illinois may not be using executive authority to enforce an emergency flavor ban, lawmakers are in the process of trying to pass the Flavored Tobacco Ban Act to impose a statewide ban on the sale of all flavored electronic cigarettes and tobacco products. The proposed legislation was scheduled to be heard in an executive committee meeting on October 28; however, that meeting was rescheduled for October 30, with no word yet on final vote.

In the meantime, a bill to ban vaping in public places has passed the Illinois Senate and will be heading to the House for a vote.

Statewide Flavor Bans Still intact

While 5 of the 7 recent statewide vaping bans have been overturned, others still remain intact – including the full ban on vaping products in Massachusetts.

Massachusetts Vaping Ban Holds Despite its Flaws

On September 24, Massachusetts Governor Charlie Baker shocked the nation with his order to enforce a four-month emergency ban on all vaping products – not just flavors.

The order came as a declaration of a public health emergency, claiming the reason behind the ban is to allow time for investigation into the recent outbreak of lung illnesses, as well as in an effort to combat youth vaping.

The ban brought on a couple of lawsuits, the first brought on by a group of local vape shops who the state had overstepped its authority, using vaping-related illnesses as the basis for the ban even though evidence was already linking the illnesses to THC vapes. The group also argued that they were given no notice and no chance to be heard before the ban took effect and were essentially forced out of business overnight.

The case was heard by a U.S. District Court judge who declined to issue the requested temporary restraining order, stating that the plaintiffs did not demonstrate hardships or threat of irreparable harm and that granting the order would conflict with public interest.

The second lawsuit came from the Vapor Technology Association on behalf of several retailers, including some based out of New Hampshire and Connecticut, which argued that the ban will not only destroy the livelihoods of more than 2,000 workers, but also violates interstate commerce laws as the ban also affects out-of-state wholesalers, distributors, and manufacturers who supply the state’s vaping market.

The case was heard on October 21, with a Suffolk County Superior Court judge ruling that, despite its flaws, the ban would remain and gave the Baker administration a week to rewrite and reissue the ban through an emergency regulation. The judge also ordered the administration to provide an opportunity for public comment.

Rhode Island’s Flavor Ban Still Intact – For Now

While Rhode Island Governor Gina Raimondo’s emergency flavor ban, which became effective October 4, hasn’t been overturned just yet, it is in the works.

Governor Raimondo, who seems to believe no adult enjoys the taste of chocolate milk, held a press conference on September 25 to sign an executive order to ban flavored vaping products and ordered the health department to create the necessary regulations.

The VTA and a local vape shop owner are in the process of suing the governor, along with the state’s department of health and department of health head, stating that the ban would ruin hundreds of small businesses and that the emergency regulations implementing the ban are invalid and unlawful.

Is There Really a Public Health “Emergency”?

While U.S. politicians and health groups continue to abuse their authority and mislead the public regarding the recent lung illness outbreak, other countries like those in the UK are questioning whether or not there is a real crisis. While more than 1,000 vaping-related lung illness cases have been reported in the U.S., not a single case has surfaced in other countries where vaping is prominent.

When you pair that observation with the evidence linking the lung illnesses and vaping-related deaths to THC vapes, there is evidence of a crisis, just not in the nicotine vaping space. And even though the CDC has finally admitted THC vapes as the main culprit, the agency is still issuing vague warnings to refrain from “vaping”.

The U.S. and the UK appear to be polar opposites when it comes to public health. The UK’s Public Health England continues to support its 2016 evidence-based review that concluded vaping to be 95% safer than smoking, while U.S.’s equivalent, the CDC, continues to issue vague warnings about vaping without distinguishing between legally sold nicotine vapes and illicit THC vapes.

Other U.S. health groups have even gone as far as saying that vaping is more harmful than smoking, while junk science performed on mice continues its search to link vaping to cancer.
And when it comes to nicotine, the UK has also used evidence-based research to conclude that nicotine alone is not the harmful substance in traditional cigarettes, while the U.S. continues to view nicotine on the same scale as opioids.

We could only hope that the U.S. will embrace vaping in the same way as the UK, where at least two hospitals in England have actually opened vape shops to help encourage patients and visitors to quit smoking as part of an initiative to become smoke-free by 2030. But with state governments and even the Trump administration in a perpetual war over vaping, smoking may continue to be the leading cause of preventable death in the U.S.