A federal judge upheld Massachusetts’ four-month ban on the sale of vaping products Friday, at least for now.
U.S. District Judge Indira Talwani denied the vaping industry’s request for a temporary reprieve from the ban while their legal challenge plays out in Boston federal court, saying the plaintiffs did not show they would likely succeed on the merits of the case or that the “balance of hardships” weighs in their favor. Talwani had said in a hearing earlier in the day that the legal motion felt premature and that the public health concerns prompting the ban likely outweigh any short-term impacts to local businesses.
Another court hearing is set for Oct. 15 where both sides are expected to deliver more extensive arguments in the case.
Lawyers representing local vape shops argued that small, independent operators are being disproportionally hurt by the ban, with many forced to lay off staff or close their shops entirely.
“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?” Talwani asked industry lawyers at one point during the hearing.
Republican Gov. Charlie Baker issued the ban and declared a public health emergency Sept. 24 after more than 60 potential cases of lung disease related to the use of electronic cigarettes and vaping were reported to the state.
The state Public Health Department has since said at least 10 represent probable or confirmed cases of lung illness caused by e-cigarette products. Nationwide, the U.S. Centers for Disease Control and Prevention has said 18 have died and 1,080 people have been sickened.
Baker has said the ban will allow health officials to determine the cause of the illnesses and decide what further steps are required.
At least three lawsuits have been filed in state and federal court challenging Massachusetts’ ban, which runs through Jan. 25, 2020, and is considered among the harshest imposed on the industry. Several states, including Michigan, Oregon and Rhode Island, have issued some kind of ban. On Thursday, an appeals court in New York temporarily blocked the state from enforcing a proposed ban on sales of flavored e-cigarettes.
The Vapor Technology Association, a national trade group that’s challenging the bans, argued in its federal lawsuit in Massachusetts that the ban will cause “irreparable harm” to their multimillion-dollar industry.
It also said the ban poses a public health risk by eliminating what it argues is a safer alternative to tobacco and forcing those seeking vaping products to find them on the black market.
