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.
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.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.”