NY state ban on flavored e-cigarettes set to expire before it gets enforced: What to know

David Robinson | New York State Team

Show Caption Hide Caption NY flavored vape ban: Small shops brace for impact as ban remains up in the air Exscape Smoke Shop, a small vape shop in Rochester, has three employees. If flavored vaping products are banned, the store says small shops will be hit hard.

New York state’s emergency ban on flavored electronic cigarettes has been stalled in court so long it is set to expire before it ever gets enforced.

The 90-day ban approved on Sept 17 was swiftly halted as part of an ongoing lawsuit filed by vaping industry leaders.

Now, a key state Health Department panel is poised to vote on Dec. 12 to renew the ban in hopes that is upheld in state Supreme Court in Albany County.

Health Department spokeswoman Jill Montag said the agency is "confident that the court will agree that this is a public health emergency demanding immediate action to help ensure the wellbeing of our children."

The lawsuit seeking to overturn the electronic cigarette, or e-cigarette, flavor ban was filed by Vapor Technology Association, a national trade group, and vape shop owners in New York.

Judge Catherine Cholakis was assigned the case following the appeals court decision to halt enforcement, court records show.

Pro-vaping advocates have criticized the flavor ban as government overreach that threatens to drive thousands of adult vapers back to smoking cigarettes.

In response to the upcoming vote, Tony Abboud, executive director of the Vapor Technology Association, said New York state "needs to reevaluate its plan for issuing a second unlawful and misguided emergency rule banning flavors."

"The State is going to waste more taxpayer dollars and create a bigger public health crisis by driving people back to combustible cigarettes or to illegal sales in a new and larger black market," he said.

Health officials have cited the growing ranks of young people in New York getting addicted to vaping flavors that mimic candy, desserts and fruits as the reason for the ban.

“Nearly 40% of 12th grade students and 27% of high school students are now using e-cigarettes and this increase is largely driven by flavored e-liquids," Health Commissioner Dr. Howard Zucker said on Sept. 17, citing major spikes in youth e-cigarette use since 2014.

Abboud noted a recent National Youth Tobacco Survey looked at the reasons young people experiment with e-cigarettes.

Among students who reported ever having tried e-cigarettes, the three most commonly selected reasons for use were “I was curious about them” (55.3%), “friend or family member used them” (30.8%), and “they are available in flavors, such as mint, candy, fruit, or chocolate” (22.4%), the survey found.

Gov. Andrew Cuomo ordered the ban of flavored electronic cigarettes through an emergency executive action, saying the state is investigating vaping-related illnesses in New York and across the nation. He also cited the youth vaping crisis in directing health officials to approve the ban.

It was approved Sept. 17 by the state Public Health and Health Planning Council, with two members voting against it. The same council is scheduled to consider the vote to renew on Dec. 12.

As the state ban languished in court, New York City Council last month passed its own ban on flavored e-cigs citywide.

New York Attorney General Letitia James also announced a lawsuit against industry leader Juul Labs, claiming the San Francisco-based company illegally marketed flavored e-cigarettes to teenagers in New York and across the country.

Juul officials have said the company is "focused on resetting the vapor category in the U.S. and earning the trust of society by working cooperatively with attorneys general, regulators, public health officials and other stakeholders to combat underage use and convert adult smokers from combustible cigarettes."

It is all unfolding as New York state legislators are expected to debate a permanent statewide ban on flavored e-cigarettes during the next Legislature session beginning in January.

Meanwhile, the Centers for Disease Control and Prevention continues to investigate more than 2,000 cases of vaping-related illnesses, including 42 deaths. As of Friday, New York had 201 cases and two deaths.

The CDC has linked the lung injuries to vitamin E acetate, used as a thickening agent or to dilute THC oil in vape cartridges to make it go further. Tetrahydrocannabinol, known as THC, is the ingredient in cannabis that creates the "high."

Most of the people with vaping illness also used nicotine-based electronic cigarettes. And the big uptick in middle and high school vaping has added pressure for state and federal regulations of e-cigarettes.

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David Robinson is the New York state health care reporter for the USA TODAY Network. He can be reached at drobinson@gannett.com or followed on Twitter: @DrobinsonLoHud