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Massachusetts Ban on Vaping Products Remains in Effect

Posted by Marianne C. LeBlanc

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Marianne is a trial attorney with over two decades of experience in representing clients and a member of BBO and served on the Regulators Subcommittee of the SJC Committee on Lawyer Well-Being. With record-setting verdicts in MA, Marianne’s advocacy skills draw on her commitment to making a difference both for clients and the community at large. Meet Marianne

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On September 24, 2019, Massachusetts Governor Charlie Baker declared a public health emergency in response to the nationwide outbreak of lung illnesses linked to e-cigarette and vaping products. In response, the Massachusetts Department of Public Health issued a four-month statewide ban on the retail sale of e-cigarette and vaping products.  

On October 21, 2019, Massachusetts Superior Court Judge Douglas Wilkins stated that Governor Baker’s administration had enacted the ban unlawfully. He gave them a week to follow the proper procedures and submit a formal emergency regulation. On October 28, the administration held a public hearing and filed the emergency regulation, allowing it to remain in effect.

Nationwide Outbreak of E-cigarette and Vape Associated Lung Injury (EVALI)

In August 2019, the Centers for Disease Control and Prevention (CDC) issued an statement about the nationwide outbreak of severe pulmonary disease, including 37 deaths, associated with e-cigarettes. The CDC statement encouraged medical professionals to report any cases of lung disease that do not have a clear cause. In response, the Massachusetts Department of Public Health required doctors in Massachusetts to report these cases. Since then, 46 cases have been reported to the CDC, 16 of which meet the CDC’s definition of a vaping-related illness.

We still don’t know what exactly about the e-cigarettes and vapes is causing these illnesses. The CDC is investigating the devices themselves as well as the THC, nicotine, or combination of the two. Since the cause is still unknown, and has led to death, Governor Baker declared the public health emergency and implemented the ban. At least seven other states, including New York and Rhode Island, have issued their own similar bans.

Medical Marijuana Survives the Vape Ban

Although the ban continues, the sale of vaping products for medical marijuana use was reinstated by Judge Wilkins. He ordered that the ban be lifted for patients holding a valid medical marijuana license. The Massachusetts Cannabis Control Commission holds the authority over medical marijuana use, not the Department of Public Health.

The Next Phase of the Vape Ban

In compliance with a court order, state officials will be holding a hearing to assess the public opinion on the ban and its impact on small businesses in the state.  The hearing will be held on Friday, November 22, 2019, at 10:30 AM in the Public Health Council Room, Second Floor, Department of Public Health, 250 Washington Street, Boston, MA.