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UPDATED: Another lawsuit filed against state’s vaping ban   | Local News


BOSTON — Another lawsuit challenging Gov. Charlie Baker’s ban on e-cigarettes and vaping products has been filed in federal court, as the legal warfare over the restrictions ramps up.

The lawsuit, filed by the Vapor Technology Association on behalf of several retailers, argues a four-month blanket ban on vape sales has “shuttered and will irreparably destroy Massachusetts’s $331 million nicotine-vapor-products industry, and the livelihoods of the 2,500 workers that it employs.” It asks a judge to block the emergency order.

“In the days since the ban took effect, it has ravaged the vaping industry by forcing business owners to shut their doors and order their employees to stay home,” the lawsuit states. “Each day that the ban remains in effect, business owners lose income and employees miss out on paychecks.”

The plaintiffs, including retailers from New Hampshire and Connecticut, argue that Massachusetts’ ban also violates interstate commerce laws because it affects out-of-state wholesalers, distributors and manufacturers who supply the state’s retail market. The state’s ban on the “display” of vaping products also violates the First Amendment, according to the complaint filed late last week in U.S. District Court in Boston.

“The sudden enactment of this far-reaching ban has upended the vaping industry and caused confusion and uncertainty among consumers and retailers alike,” the complaint reads. “It will impermissibly burden both Massachusetts citizens and those far beyond the commonwealth’s borders.”

Baker announced the ban on Sept. 24 in response to a nationwide outbreak of lung disease that has been tied to vaping products. He said a temporary prohibition, which covers all vaping products, is needed to give researchers time to study concerns about the health effects of e-cigarettes and come up with tougher regulations.

The U.S. Centers for Disease Control and Prevention says at least 19 people — including one in Massachusetts — have died and more than 1,000 more have fallen seriously ill after vaping.

Health officials suspect tainted, black-market marijuana vaping cartridges may be the cause of the outbreak, but some patients have reported only vaping nicotine products.

On Monday, Massachusetts health officials reported the state’s first death from the mystery vaping illness — a woman in her 60s from Hampshire County. No other details were provided.

To date, at least 121 possible cases of vaping-related illnesses have been identified in the Bay State, public health officials said, nine of which have been confirmed.

Massachusetts is one of four states — along with Michigan, New York and Rhode Island — that have imposed temporary restrictions on retail sales of vaping products.

Health groups such as the American Lung Association support the bans, arguing that flavored e-cigarettes are hooking a new generation on nicotine products and should be outlawed.

But the policies have shut down hundreds of vape stores, forcing them to impound their merchandise and lay off workers, and spawned several legal challenges.

Last week, a New York state appellate court delayed the state’s e-cigarette ban, issuing a temporary restraining order against the rules which were set to go into effect Friday.

Meanwhile, a U.S. District Court judge in Massachusetts on Friday declined to issue a temporary restraining order in a lawsuit filed on Sept. 29 challenging this state’s ban, filed by three vape shop owners.

The business owners involved in that case — New Hampshire-based Boston Vapors, Vick’s Vape Shop in Medford and Mass. Dynamics in Weymouth — have also asked for compensation for revenue lost since they closed their shops and cancelled contracts to comply with the ban, according to their attorney, Craig Rourke, of Saugus.

Rourke filed a similar challenge to the state’s ban in Suffolk County Superior Court two weeks ago on behalf of Danvers vape shop owner Behram Agha, who operates Vapor Zone at the Liberty Tree Mall.

The retailers behind the complaint filed on Sept. 29 are due in federal court on Oct. 15 for a preliminary injunction hearing.

Christian M. Wade covers the Massachusetts Statehouse for The Salem News and its sister newspapers and websites. Email him at cwade@cnhi.com.





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