Monday, October 28, 2019

In the spirit of its colonial history of fighting for the independence of this country from the overbearing authoritarian rule of the British, Massachusetts’ legislative and judicial branches (Judges Wilkins and Desmond) are reigning in the overreaching actions of Governor Charles Baker, who has unilaterally imposed a ban on all vaping products. Initially, and undaunted by the independent Massachusetts Legislature declining to ban all vaping products earlier this year, Governor Baker sought by Executive Order to impose the nation’s most expansive ban on sales of vaping products.

In response, the business citizenry sought redress in the Massachusetts courts, which have repeatedly ruled in their favor.

Specifically, after a three-day hearing, Judge Wilkins found the Governor’s Order overstepped his authority by imposing the vaping sales ban without affording citizens their constitutionally protected right to due process; for example, by not providing a required public hearing or fiscal/ small business impact analyses. Judge Wilkins was even more troubled that such rights were ignored, both before the Order was issued and even after litigation was filed. Judge Wilkins nonetheless allowed the Order’s ban to continue by one week, giving the Governor a second chance to comply with the law, even though the judge found that the vaping businesses and adult customers would most likely prevail in challenging the very Order that “vaporized” them from Massachusetts in the first place. During that period, rather than enlisting either legislative assistance or public input, Massachusetts Governor Baker chose instead to appeal to Judge Desmond, where again the Governor lost.

With Governor Baker having twice lost efforts to sustain his Order, it now ends on October 28, 2019, unless the executive branch can correct itself by providing evidence of the supposed “emergency” that the Order purports to address. This may prove difficult, as Judge Wilkins already has raised doubt as to the existence of an emergency, given the Governor’s lack of verified or confirmed data about exclusive nicotine use of those reporting lung problems or that a merely alleged ongoing epidemic is something that suddenly rises to the level of Executive Order purview.

Indeed, and contradicting the Governor’s position, Public Health England, the British equivalent of the U.S. Centers for Disease Control, has estimated that e-cigarettes are at least 95 percent less hazardous than conventional cigarettes. In addition, one of the United Kingdom’s largest mental health hospitals is providing free e-cigarettes to those trying to quit smoking. Still further, despite the United Kingdom’s embrace of vaping, it does not report an outbreak of lung injury cases nor has it experienced lipoid pneumonia associated with illicit THC products, which in the United States have been identified as a potential cause of the relatively small number of extreme health incidents involving vaping.

With legislative caution, judicial rebuke, evolving data supporting a theory that vaping lung injuries are due to illicit THC, and the Governor’s own lack of offered evidence in support of an emergency-seeking Order, some may question the undercurrent of selective media frenzy and the Governor’s actions. But in the meantime and with proper governing checks and balances, it appears that as the witching hour is upon us, the vaping industry and its customers have earned a rightful directive that they are free to continue sales and use of their risk-reducing products.