Baker vape ban similar to Zohydro order

It’s more than a week into a four-month sales ban on all vaping products in Massachusetts, and Gov. Charlie Baker‘s administration is already looking at two major lawsuits — one in district court and a second in federal court. But if you look back five years to a similar ban, history may be repeating itself, and not in Baker’s favor.

Citing vaping health impact concerns, Baker and state Public Health Commissioner Monica Bharel imposed the four-month order banning online and in-store sales of vaping products containing both nicotine and marijuana. Baker is the first governor to ban all vaping products; other states have banned the sale of flavored nicotine products.

The ban is designed to give the Centers for Disease Control and Prevention and the Food and Drug Administration time to investigate the cause of a nationwide outbreak of lung disease that has left hundreds hospitalized and 12 dead. None of the deaths have occurred in Massachusetts.

Between September 11 and Monday, 83 suspected vaping-related pulmonary cases had been reported to the state’s Department of Public Health, all at varying stages of investigation by state officials. Ten of those cases have been reported to federal authorities and the CDC. No definitive conclusions have been reached yet, but investigators have been focused on additives in black market cartridges used to vape marijuana.

The first lawsuit against Baker’s ban, filed in federal court Monday, alleges the governor violated the US Constitution by disrupting interstate trade and taking private property without providing adequate compensation. The lawsuit also alleges he overstepped his authority by banning products already regulated federally by the US Food and Drug Administration. Filed by three shops in Weymouth, Medford, and Salem, New Hampshire, the complaint says the ban cost them their their main product, and that the financial impact is extreme.

A second suit filed in district court by the Vapor Technology Association claims that the governor’s ban has “shuttered and will irreparably destroy Massachusetts’ $331 million nicotine-vapor products industry, and the livelihoods of the 2,500 workers that it employs.” 

The complaint suggests the illnesses are being caused by vitamin E acetate added to oil containing THC, the active ingredient in marijuana. The complaint notes vitamin E acetate is used on the black market, not Massachusetts vape shops. 

Even as the finer points of public health are debated, the question remains — can a governor legally impose such a widespread ban?

Gov. Deval Patrick imposed a similar ban in  2014, authorizing the Department of Health to issue an emergency order banning Zohydro, an opioid hydrocodone used to treat severe chronic pain. Only a handful of prescriptions had been written when the ban took place.

Zogenix, the maker of Zohydro, sued Patrick and then-Department of Public Health Commissioner Cheryl Bartlett, asking for an injunction. In a similar situation to today’s ruckus, the drug had been approved by the FDA  but faced resistance in a number of states. Massachusetts became the first to officially seek a codified ban. After several battles in court, a district court judge and then a federal judge both ruled that Patrick was out of line, in part because Zogenix was given only five hours warning its product was being banned.. 

In the vaping ban cases, the companies and vape shops are also arguing they were caught off-guard and given no chance to respond to the governor’s concerns.

The crux of the state’s argument in the Zogenix case and which could come into play again in the vaping cases is that the FDA’s approval does not mean Massachusetts is barred from placing additional restrictions on the product. That argument failed Patrck, and it could fail Baker as well.. 



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