Judge rules Baker’s vape ban oversteps constitutional boundaries


Elisa Figueras

After a four-month vape sales ban, Suffolk Superior Court Judge Douglas Wilkins rules that it breaches constitutional boundaries.

Petrina Danardatu, news correspondent

Suffolk Superior Court Judge Douglas Wilkins claimed the actions of Gov. Charlie Baker’s administration overstepped constitutional boundaries in a hearing on Oct. 21, sparking even more controversy surrounding the four-month sales ban on nicotine and marijuana vape products. 

Wilkins released a 32-page order giving the Baker administration a week from Oct. 21 to comply with state law that dictates the steps that must be taken before any restrictive regulations can take effect — steps Wilkins says should have already been taken before the ban’s enactment in September.

Since its enactment, the ban has created frustration in some members of the Massachusetts community, since it was passed before business owners and other members of the public had the opportunity to weigh in. 

Three Massachusetts vape shops have conjointly sued the Baker administration over the ban on vape products. These shops include Mass Dynamics in Weymouth, Boston Vapor in Revere and Vick’s Vape Shop in Medford. 

“Affecting our business? We have no business. Bills are going out, but nothing is coming in,” said Linda Vick, co-owner of Vick’s Vape shop. 

Craig Rourke, the attorney fighting for the lawsuit, claims the Baker administration caused “irreparable harm” to his clients. Rourke describes how the ban has affected his clients’ livelihood to the point that it has inhibited their ability to buy groceries, pay for rent and support their families. 

“Our civil rights were violated by the governor’s unconstitutional ban,” Rourke said. 

Rourke added that people may resort to black markets for vape products, return to smoking combustible cigarettes and cross state lines to buy products. 

“Paradoxically, the ban seems to end up having the reverse effect that the governor was hoping for, harming more of the people that it was originally designed to protect,” Rourke said. 

“It’s important to understand that the lack of federal regulation is a direct contributor to the emergency situation that we are now facing,” said Emily Nink, policy associate at the Public Health and Tobacco Policy Center. 

Nink added that the Food and Drug Administration, or FDA, has the authority to demand a “pre-market review,” in which tobacco or vapor product manufacturers would be required to submit an application to the FDA before they can begin marketing their products. However, the FDA has extended the deadline multiple times, resulting in the marketing of products that have yet to be appropriately evaluated.

“The result is that now the market is just flooded with [vapor and tobacco] products that really haven’t undergone any sort of safety review or ingredient testing. Consumers may not even be aware that these products are undergoing less regulation than your salad greens or even your vitamins,” Nink said.

The FDA is now under a court order to require the submission of those applications from tobacco and vapor product manufacturers by May 2020.  

Ingrid Angulo
Paraphernalia at Symphony Smoke Shop.

Since Jan. 1, Massachusetts became the sixth state to raise the legal age for the consumption of tobacco products from 18 to 21. However, those who turned 18 before Dec. 31 last year are exempt from this regulation

Despite these stricter regulations on tobacco consumption, members of the public have also criticized the existence of the ban on vape products, when cigarettes are continuing to be sold.  

“Of course people are asking, ‘What about cigarettes?’ It’s a natural reaction, and it’s a good one,” said Richard Daynard, president and founder of the Public Health Advocacy Institute, or PHAI, at Northeastern. 

PHAI is currently suing Juul on behalf of three clients — a group of Massachusetts residents who became addicted to Juuls before the age of 18. However, PHAI is not seeking the traditional financial compensation for these clients. 

PHAI is seeking out a court order requiring Juul to fund pediatric researchers and clinicians who focus on adolescent addiction to provide cessation treatment for these clients, and this will likely be possible through an arrangement where they would be reimbursed by health care providers. 

Possible smoking cessation treatments include nicotine replacement therapy by use of nicotine patches/gum/nasal spray/inhalers, bupropion or varenicline medication treatment, and cognitive behavioral therapy. Moreover, they are demanding that Juul fund more research into effective cessation treatments for nicotine addiction. 

“The ban addresses the acute side of things, which is ultimately good. But the chronic illnesses, the long-term effects of nicotine addiction, needs to also be addressed, and the ban doesn’t do that,” Daynard said. 

Besides promoting the avoidance of drugs altogether and continuing to fund research programs that study effective addiction cessation treatments, PHAI supports a form of innovative tobacco control proposed by A.J. Berrick, a professor of mathematics based in Singapore –– a project called Tobacco-Free Generation

Tobacco-Free Generation is a policy initiative to eliminate disease and addiction caused by tobacco products by phasing out sales of these products to people born after a particular date. With the enactment of this policy, tobacco products would not be sold to people born after a certain date, for example, on or after January 1, 2000. 

This policy would be legally viable through the Smoking Prevention and Tobacco Control Act, signed into law by former U.S. President Barack Obama in 2009, which affirms the authority of state and municipal governments to prohibit the sale of tobacco products to individuals of any age. 

There are many perspectives at play here — the federal, public health and business sides — many of which differ substantially. However, all sides fight for their positions on the grounds of “preventing further harm.”

From a public health perspective, this refers to further harm or causation of vape-related illnesses. From a federal perspective, although the ban was enacted on shaky legal ground, the Baker administration was still granted a grace period to correct their mistakes.

Rourke and his clients claim that the Baker administration has failed to comprehensively consider the impact of the ban on the whole community, causing irreparable harm rather than preventing it. 

“If they [the Baker administration] say that they did take these people’s livelihoods into consideration, I can tell you decidedly that they did not. This is a manufactured crisis,” Rourke said.