Gov. Charlie Baker's ban on the retail sale of vaping products in Massachusetts was hanging in limbo Thursday after an appeals court judge denied the administration's request to overthrow a lower court order that requires Baker to alter his ban and reissue it Monday.
Appeals Court Judge Kenneth Desmond wrote Wednesday that Superior Court Judge Douglas Wilkins' decision on the governor's vaping ban was "thoughtful, thorough, and balanced."
The decision by Desmond means Baker will likely have to comply with Wilkins' order that the governor pursue an emergency regulation, or allow sales of nicotine vaping products to resume next week.
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Baker said he and Attorney General Maura Healey are considering their options to make sure the first-in-the-nation ban survives beyond Monday.
Wilkins on Monday ruled that the Baker administration had likely exceeded its executive authority by using the declaration of a public health emergency to issue a four-month ban on the sale of all vaping products.
He told the administration it had until Monday to reissue the ban as an emergency regulation, which would shorten its duration to three months and open the ban up to a process allowing for public testimony and an examination of its impact on small business owners.
Both Baker and the plaintiffs appealed the order, and the administration filed for a stay to block the order from taking effect until its full appeal can be heard in the appeals court.
"I am not persuaded that the defendants have established a likelihood of success on appeal," Desmond wrote in his decision.
Desmond also ruled against the plaintiffs, including the Vapor Technology Association, which had asked the court to lift the ban immediately rather than give Baker time to adjust.
Desmond said that Wilkins' decision was "thoughtful, thorough, and balanced."
"The Superior Court carefully balanced all of the equities concerned, including, but not limited to, financial and public health concerns, when it crafted its order," Desmond wrote in the court record.
Baker declared a public health emergency on Sept. 24 in response to the nationwide outbreak of vaping-related lung injuries, which has led to 34 deaths in 24 states, including one in Massachusetts.
But plaintiffs seeking to overturn the ban argued that the governor overstepped his executive authority and violated the state constitution's separation of powers, causing irreparable harm to vape shop owners who were put at risk of going out of business.
"The administration declared a public health emergency and imposed a temporary ban on all vape products to allow medical professionals to better understand what is making people sick and resulting in deaths in some cases, and is working on next steps with the Attorney General’s Office to ensure the ban remains in place," spokesman Terry MacCormack said in a statement.
The Vapor Technology Association did not respond to a request for comment.
The Centers for Disease Control has not yet identified the cause of the lung injuries or the ingredients that may be to blame, but the agency did say this week that THC, the active ingredient in marijuana, has been present in most samples tested and most patients affected have reported vaping THC.
"The latest national and state findings suggest products containing THC, particularly those obtained off the street or from other informal sources (e.g. friends, family members, illicit dealers), are linked to most of the cases and play a major role in the outbreak," the CDC said in the latest update on its website.
The agency specifically recommends refraining from the use of all e-cigarette, or vaping, products until an exact cause of the lung injuries can be determined, which Baker has used as justification for the continuation of the ban.
"The Centers for Disease Control has issued clear warnings stating that the outbreak of these vaping-related illnesses and deaths cannot at this time be attributed to a single substance or products and has urged users to stop vaping all nicotine and marijuana products," MacCormack said.
The court order applies only to nicotine vaping products. The sale of marijuana vaporizers would continue to be banned beyond Monday under the Department of Public Health's emergency order while legal challenges move through the courts.
As of Tuesday, 1,604 cases of lung injury resulting from e-cigarette, or vaping, product use have been reported to the CDC, including 47 cases from Massachusetts.
Gregory Conley, president of the American Vaping Association, said that there's enough evidence linking the illnesses to THC vaping that Baker should just lift the ban.
"The governor's ban on nicotine vaping products has already killed jobs and sent ex-smokers back to smoking. It was rushed through with no scientific justification, and no input from the small business owners who employ 2,500 people in Massachusetts and make up a $331 million industry," Conley said in a statement Tuesday morning.
If Baker does comply with Wilkins' order, the administration would have to produce a small business impact statement and hold a public hearing by Christmas Eve.
The Food and Drug Administration on Thursday also ordered Eonsmoke LLC to remove nearly 100 electronic nicotine vaping products from the market for not having the proper authorization to market and sell those products, including e-liquids in flavors such as mango, cotton candy and sour gummy worm and others products marketed without approval as a safer alternative to competitor tobacco products.