Massachusetts officials to defend toughest-in-nation vaping ban in federal court

[October 04, 2019]  By Tim McLaughlin

BOSTON (Reuters) - Massachusetts health officials on Friday are expected to defend their crackdown on sales of vaping products in a courtroom battle that will test the toughest measures yet in a rapidly developing response against e-cigarettes and their potential link to a lung disease.

U.S. District Judge Indira Talwani in Boston has set a quick schedule to consider whether to block Massachusetts Governor Charlie Baker's administration from enforcing a four-month ban on the sale of vaping products.

Baker's move came as federal officials on Thursday reported that 18 people have died from a mysterious vaping-linked illness that has sickened more than 1,000 in the United States.

Trade group Vapor Technology Association (VTA) is challenging Baker's Sept. 24 ban in a lawsuit that was filed on Tuesday.

VTA, which sued along with the operators of several vape shops in Massachusetts, Connecticut and New Hampshire, said the order amounts to an unconstitutional prohibition on retail and online advertising of their legal products.

The group's lawyers, including Joseph Terry of Williams & Connolly, argued the order not only violated the plaintiffs' free speech rights under the U.S. Constitution, but also the Commerce Clause's prohibition on state laws that unduly restrict interstate commerce.

Baker announced the ban on sales of e-cigarettes and vaping supplies, both those used for nicotine and THC, the psychoactive ingredient in marijuana, which is legal in the state, in response to the nationwide surge in a sometimes deadly lung disease linked to vaping.

A man uses a vape device in this illustration picture, September 19, 2019. REUTERS/Adnan Abidi

The U.S. Centers for Disease Control and Prevention has linked vaping to 18 deaths and 1,080 confirmed and probable cases nationally in mostly otherwise healthy people who contracted the mysterious respiratory illness. It has said most patients affected reported using products containing THC.

More than two-thirds of patients are male. The median age of cases is 23 years, with about 62% of patients aged 18-34, according to the CDC.

The VTA says Baker's ban, if left standing, will irreparably destroy Massachusetts' $331 million nicotine vapor products industry and the livelihoods of the nearly 2,500 workers it employs.

The lawsuit is one of a number filed nationwide by vape shops and the VTA challenging restrictions announced by various states in response to the outbreak of vaping-related illnesses.

Governors in Michigan, New York and Rhode Island have all restricted sales of flavored e-cigarette products in recent weeks. Ohio Governor Mike DeWine on Tuesday called on state lawmakers to pass a ban on most flavored e-cigarettes.

(Reporting by Nate Raymond in Boston; Writing by Tim McLaughlin in Boston; Editing by Scott Malone and Bill Berkrot)

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