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Answers To 6 Questions About Gov. Baker’s Ban On Vape Products

On Tuesday, Gov. Charlie Baker declared a public health emergency in response to a multi-state outbreak of lung disease associated with vaping, and he set in motion a four-month ban on sales of all vaping products in Massachusetts.

It’s the first state to halt sales of vaping products of all kinds.

Here are the answers to six questions related to the ban:

1. What gives the governor the right to take such a swift and sweeping action?

The authority is spelled out clearly in state law. M.G.L. Chapter 17, Section 2A states that following a declaration by the governor and approval of the Public Health Council, the commissioner of public health may take whatever action is deemed necessary to secure the public health.

2. What’s included in this particular ban?

All non-flavored and flavored e-cigarettes and vaping products, including mint and menthol items. (Vaping products do not include any item that has been approved by the FDA either as a tobacco use cessation product or for other medical purposes.)

THC vape products are also included in the ban, even for registered medical marijuana patients. The order specifically directs the Cannabis Control Commission to enforce the order.

3. Who enforces this ban?

Individual municipal boards of health are responsible for making sure retailers comply with the order. They can cite violators; failure to comply may result in fines up to $1,000 per item per sale, according to the Department of Public Health (DPH). And state police and local law enforcement may seize any vaping products from entities or persons that continue to display or sell products in violation of the order.

4. What’s the response been like?

Many members of the medical community have cheered Baker’s ban. But some officials, like a cannabis control commissioner, have criticized the move, saying it will push people into the illicit market for unregulated products. And local retailers who sell vaping products have blasted the decision as well.

5. When was the last time a public health emergency was declared?

Former Gov. Deval Patrick declared a public health emergency back in March 2014 in response to the opioid epidemic. A key part of that declaration was the ban of the powerful painkiller Zohydro.

The manufacturer of the drug challenged the ban in court, and a federal judge struck down the ban, determining that the state did not have the power to overturn a ruling by the FDA, which had deemed Zohydro safe for use.

The FDA regulates all tobacco products, including vapes.

6. Is anyone planning to challenge Baker’s ban in court?

Yes. Attorney Craig Rourke told WBUR Thursday that he filed a lawsuit in Suffolk Superior Court on behalf of his client, Vapor Zone in Danvers.

Rourke calls the governor’s emergency declaration arbitrary and capricious, and said he was asking the court to declare that the actions of the governor, the DPH commissioner and the Public Health Council were an overreach.

Rourke contends the state denied his client notice, adding that when the government is going to take some action, there needs to be an opportunity for a public hearing so that there can be an exchange of ideas and information.

Said Baker Thursday: “If people choose to pursue the courts, that’s an available option to them, but we believe we’re doing the right thing.”

With reporting by State House News Service

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