Lawsuit: Baker overstepped his authority with vape ban

FDA declines comment on governor’s action

THREE SHOPS SELLING electric nicotine delivery systems in Massachusetts sued Gov. Charlie Baker and his administration in federal court on Monday, alleging the governor violated the US Constitution by banning all vaping products for four months.

The lawsuit alleges Baker overstepped his authority by banning products regulated at the federal level by the US Food and Drug Administration. The lawsuit also alleges Baker violated the Constitution by disrupting legal contracts between the store owners and their suppliers, by intervening in interstate trade, and by taking private property without providing adequate compensation.

The three shops are Mass Dynamics of Weymouth; Vick’s Vape Shop of Medford; and Boston Vapor of Salem, New Hampshire. Craig Rourke, the attorney representing the shops, said the stores only sell tobacco products and have seen their business decimated by the governor’s ban.

While other governors have taken steps to ban the sale of flavored nicotine products, Baker is the only governor to ban all vaping products. He did so after consulting health officials but without holding any conversations with industry or trade groups.

The allegation that Baker is overstepping the authority of the FDA may be difficult to prove. While the FDA does regulate electric nicotine delivery systems, there is a provision in the federal Food, Drug, and Cosmetic Act that allows states to take various actions with respect to tobacco products, including a “measure relating to or prohibiting the sale, distribution, possession, exposure to, access to, advertising and promotion of, or use of tobacco products by individuals of any age….”

Baker’s ban applies to electric delivery systems for nicotine as well as marijuana. The FDA’s jurisdiction applies only to tobacco products; vaping products used for marijuana are regarded as illegal under federal law.

Craig Rourke, the attorney representing the three shop owners, said he is aware of the provision in the Food, Drug, and Cosmetic Act, but he said that measure assumes state authorities would not act without first giving notice to those affected and soliciting input. He said his clients were never consulted by the Baker administration and the ban took them by surprise.

Rourke said he sees the governor’s ban as a regulatory taking of his clients’ property.

A spokeswoman for the Food and Drug Administration declined comment on the governor’s ban.

The FDA website said the agency is working with the Centers for Disease Control and Prevention to determine what is causing the lung illnesses that are cropping up among vape users. As of September 24, 12 deaths and 805 cases of the mysterious lung illness have been documented nationwide. Massachusetts public health officials on Monday said they reported five additional cases of  “vaping-associated pulmonary injury” to the CDC, bringing the statewide total of confirmed or probable cases to 10. Vaping THC, the active ingredient in marijuana, was reported in five of the cases, while vaping THC and nicotine were reported in four, and just nicotine in one.

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Bruce Mohl

Editor, CommonWealth

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

The agency said it is attempting to track the devices used by those who became sick to determine whether those devices were manufactured by companies subject to the FDA’s regulatory authority.

“The FDA is analyzing samples submitted by a number of states for the presence of a broad range of chemicals, including nicotine, THC and other cannabinoids, along with cutting agents/diluents and other additives, pesticides, opioids, poisons, heavy metals and toxins,” the FDA says on its website. “Federal and state partners are following any potential leads, including the presence of Vitamin E acetate found in many of the samples containing THC. …Vitamin E acetate is a substance present in topical consumer products or dietary supplements, but data are limited about its effects after inhalation. While the FDA does not have enough data presently to conclude that Vitamin E acetate is the cause of the lung illness in these cases, the agency believes it is prudent to avoid inhaling this substance.”

The three shop owners say in their lawsuit that they purchase their products from manufacturers approved by the FDA and their products do not include Vitamin E additives.