Governor's vape ban expected to face legal challenge

file photoA debate in Massachusetts has emerged after people died and became sick from vaping. 

Mike Portelle poured his life savings into a small vape shop in downtown Woburn after convincing his wife that the burgeoning industry was a good investment.

Business at New England Vapor was booming, he said, until media reports emerged about a mysterious vaping-related illness blamed for killing several people and sickening hundreds.

Within a matter of days, sales of vaping products plummeted more than 70%.

And now, he faces the likelihood of going out of business completely.

Last week, Gov. Charlie Baker declared a public health emergency and ordered a four-month ban on the sale of vaping products, including marijuana-based products.

Baker said the ban, the most stringent in the nation, was needed to give medical experts time to study growing concerns about the health effects of vaping.

But the move effectively shuts down hundreds of vape stores, many of them small, family-owned businesses, affecting thousands of workers statewide.

"My whole life was invested in this business," Portello said. "The bills and rent are due, and there's no money coming in. I'm going to have to file for bankruptcy and let two employees go."

The vaping industry is pushing back against Baker's directive. A legal challenge to lift the temporary ban began taking shape less than a day after the announcement.

"What the governor did was preposterous," said John Nathan, president of the New England Vapor Technology Association. "He closed 300 small businesses and conflated two separate issues that have nothing to do with these business owners."

Nathan said the trade group's national chapter has enlisted a team of lawyers who are reviewing the case in anticipation of filing a legal challenge.

"This is one of the most regressive public health policies I've ever seen enacted," he said.

Greg Conley, president of the American Vaping Association, argues that Baker's action was government overreach and needs to be challenged in court.

"This is a shameless attempt at backdoor prohibition that will shut down businesses and send tens of thousands of ex-smokers back to deadly combustible cigarettes," he said. "These businesses and their customers will not go down without a fight."

Conley and others argue that a ban will create a multi-million dollar black market for counterfeit vaping products, which will endanger public health.

So far, only three other states — Michigan and New York and Rhode Island — have banned vaping products. But Massachusetts' temporary ban goes further than others to remove all non-tobacco flavors of e-cigarettes, as well as medical and recreational marijuana vape products, from store shelves.

On a federal level, the Trump administration is finalizing plans to ban all vape products nationwide but it's not clear when, or if, that will happen.

The U.S. Centers for Disease Control and Prevention is investigating an outbreak of lung illnesses and has identified more than 500 possible cases in 38 states and one territory, but it has not yet identified a common e-cigarette or ingredient. Nine deaths have been reported.

In Massachusetts, health care providers reported at least 66 possible cases as of Wednesday of last week, at least three of which are confirmed, according to the state Department of Public Health.

Vaping companies such as Juul have been criticized for getting children hooked on nicotine-laden e-cigarettes with flavors such as bubblegum, mint and mango.

But vaping companies argue that the real culprit behind the illnesses is counterfeit vaping cartridges and THC products that are being sold on the black market.

"There is zero evidence linking these illnesses to electronic cigarette products," Nathan said. "This is a black market issue."

Marie Smith, who has owned and operated the New England Vapors shop in Dracut for six years, said the ban will likely force her to close. She supports a legal challenge.

"We obviously can't survive four months without being in business," she said. "We built this business out of nothing, only to see it disappear. I'm devastated."

Overall, she worries mostly about her customers, many of them ex-smokers who were left scrambling this week to find alternative sources of vaping products.

Many were headed up to New Hampshire, where sales of vaping products are still legal.

"They don't want to go back to cigarettes," she said. "So there going to be forced to go elsewhere."

 

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