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.. 

SARAH BETANCOURT


BEACON HILL

Responding to a wave of higher ed closures, the House passed a bill requiring much greater transparency by colleges and universities. (State House News)

MUNICIPAL MATTERS

At the request of Haverhill City Councilor Colin LePage, a billboard promoting Weedmaps for pot shopping that was near a bus stop used by youths has been replaced with a billboard encouraging children to wear seatbelts. (Eagle-Tribune)

Mike McDevitt grew up in a coastal wilderness without electricity or neighbors on Peddocks Island in Boston Harbor, and now plans are underway to make the island more of a destination for outdoor activities. (WGBH

WASHINGTON/NATIONAL/INTERNATIONAL

President Trump used Vice President Mike Pence to help pressure Ukraine to look into corruption issues following his request that the country’s president look into issues involving Joe Biden and his son Hunter Biden. (Washington Post)

In a decision that could have ramifications in Massachusetts, a federal judge ruled that a law outlawing drug houses does not apply to medically supervised drug injection sites because the intent of those sites is to reduce drug use, not facilitate it. (New York Times)

A new report says attorneys general across the country have banded together in lots of bipartisan lawsuits taking on big companies. (Boston Globe)

ELECTIONS

Elizabeth Warren and Mark Zuckerberg will never be Facebook friends, writes Joan Vennochi. (Boston Globe)

Madeline Ranalli argues that a bid by Joseph Kennedy III for Sen. Ed Markey’s seat is not what Democrats need right now. (CommonWealth)

State Treasurer Deb Goldberg won’t run for Kennedy’s House seat after all. (Boston Globe

The Boston Herald reports Dan Koh is conducting a poll to test the waters for a Democratic primary challenge against Congresswoman Lori Trahan.

BUSINESS/ECONOMY

The Bay State Banner reports the City of Boston is on pace to meet its 2030 housing goals. 

Larry Edelman says the US economy may be running out of gas, as the stock market drops by nearly 500 points. (Boston Globe

Bed Bath & Beyond plans to close 60 of its 1,024 stores. No announcement yet on which stores will be closed. (MassLive)

EDUCATION

A state education department analysis of the education funding bill being taken up by the Senate today shows it would deliver big increases to urban districts with lots of low-income students, while some other districts would see very small gains in state aid. (Boston Globe) CommonWealth spotlighted some of these issues last week, including the claim by the Baker administration — disputed by legislative leaders — that lots of districts would be required to boost local school spending under the bill. 

Three of the 10 judges on the First Circuit Court of Appeals will be assigned to review an appeal of the discrimination decision that found in favor of Harvard University. WGBH took a look at the curriculum vitae of the local federal appellate bench, and found half are alumni of the Cambridge college or law school. 

HEALTH/HEALTH CARE

An editorial from the Boston Business Journal argues that health care costs should be spread across the system, not solely placed on employers and workers. 

ARTS/CULTURE

With no notice to the artist, a contractor doing work for the Massachusetts Department of Transportation scooped up a large part of a historic in-roadway sculpture at Haymarket in Boston and carted it off. (CommonWealth)

Boston’s Museum of Fine Arts is rolling out a new program to welcome school groups following a recent incident in which Boston charter school students were allegedly subjected to racist treatment. (Boston Globe

Artist Pat Falco built what looks like part of a triple-decker and planted it in Boston’s Seaport district as a comment on how modern housing construction favors those who can afford luxury homes. (WBUR

Easton students in fashion design, construction, and tech classes are participating in a NASA contest to create and design a flag capable of flying on the moon. (Brockton Enterprise) 

TRANSPORTATION 

The Massachusetts Department of Transportation is trying to rein in the state’s 15 regional transit authorities, but the effort is moving forward at a baby-steps pace. (CommonWealth)

MassDOT eliminated one of the three proposed locations for a new western Massachusetts exit off the Massachusetts Turnpike, with the two remaining options both located in Blandford. (MassLive)

Despite bids that came in higher than expected, the $9 million project to dredge the Annisquam River to make it more navigable is back on track. (Gloucester Daily Times

ENERGY/ENVIRONMENT

Preliminary results of a study of private wells on Cape Cod found that nearly half of the water samples had detectable levels of emerging contaminants known as PFAS. (Cape Cod Times) 

A protester was arrested at a rally against the potential Weymouth natural gas compressor station proposed by Algonquin, a subsidiary of Spectra Energy-Enbridge. (Patriot Ledger) 

CASINOS/MARIJUANA

Pot store’s flower cupboard is bare, and NETA is blaming lab testing delays. (State House News)

CRIMINAL JUSTICE/COURTS

Laurance Adams was wrongfully convicted of murder and spent 30 years in prison before a key witness admitted she lied. Now he is pushing legislation that would disclose what incentives are offered to witnesses. (CommonWealth)

A day after the Download spotlighted the uneven quality of unregulated “sober homes,” a Reading man who ran a Roxbury sober home was sentenced to two-and-a-half years in jail on multiple charges of plying residents of his facility with drugs in exchange for a sex. 

The Florida attorney general’s office filed an appeal of a lower court ruling that threw out video evidence that prosecutors say shows New England Patriots owner Robert Kraft engaged in a sex act he paid for at a massage parlor. (Boston Globe)

The owner of a market located across the street from UMass Medical Center in Worcester is charged with selling fentanyl out of his shop. (Telegram & Gazette)

MEDIA

The Journal Tribune in Biddeford, Maine, is shutting down after 135 years in business.