Massachusetts Vape Ban in Legal Limbo for a Moment, Judge Warns of ‘Executive Abuse of Discretion’
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Massachusetts Vape Ban in Legal Limbo for a Moment, Judge Warns of ‘Executive Abuse of Discretion’

A state judge has given Gov. Charlie Baker until Monday, Oct. 28, to straighten out his administration’s vaping ban.

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October 23, 2019

Update: A lot has happened this week, and there's still more to come in this story. On Oct. 23, a judge rejected Gov. Charlie Baker's appeal of the earlier ruling that would halt his administration's four-month ban on vape sales in the state.

As WBUR reports, Baker's administration issued statement that insisted on keeping the ban in place. As laid out in the story below, the state judge who filed the ruling earlier this week has given the administration until Monday to set up public hearings to fully vet the policy.

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A state judge in Massachusetts has upheld Gov. Charlie Baker’s four-month ban on all vaping sales, originally set in motion Sept. 24, but he’s also given the administration just a few days to remedy its handling of the sudden policy.

The crux of the matter is a perceived overreach on the part of Baker’s office—a rush to judgment in the temporary ban that didn’t include feedback and perspectives from business owners and individuals, not least of all the state’s 60,000 medical cannabis patients—according to Dan Adams’ reporting in the Boston Globe

Citing that concern, Suffolk Superior Court Judge Douglas Wilkins gave Baker’s office until Monday, Oct. 28, to pivot.

The state has two options now: appeal the ruling or go through the process of treating the ban like an emergency rule for public health reasons. If the state would like to pursue the emergency rule, Baker’s administration would need to hold a public hearing by Dec. 24 and allow businesses and individuals the opportunity to vet the policy.

As of Oct. 23, it’s not yet clear which path the state might take. According to Adams’ reporting, however, Baker’s administration is standing by its ban.

“The administration declared a public health emergency and ordered a four-month temporary ban for retail and online sales of all vape products to better understand what is making people sick,” Lizzy Guyton, Baker’s communications director, said in a statement. “The administration maintains that the order was properly issued.”

In many ways, Massachusetts is out on a limb here. Two other states—Oregon and Washington—have instituted some form of ban on vape sales, but in both instances regulators have allowed non-“flavored” cannabis vape cartridges to remain on shelves. It’s the food-grade terpenes and questionable chemical additives that regulators are targeting. In Colorado, the plan is even more circumscribed: The state’s Marijuana Enforcement Division plans to prohibit the use of three specific chemicals in cannabis vape products (polyethylene glycol [PEG], vitamin E acetate and medium chain triglycerides [MCT oil]).

Still, the state has staked its position—even against criticism from the Cannabis Control Commission.

This narrative comes from the ongoing vaping-related pulmonary illness issue in the U.S., which to date has seen nearly 1,500 reported illnesses and 33 deaths, according to the latest data from the Centers for Disease Control and Prevention. While a specific cause has not yet been identified, investigations are focused on illicit-market products and their attendant, unregulated chemical additives. The regulated cannabis marketplace—and its increasingly popular vape product category—has been caught in the maelstrom of a public health feedback loop.

Adams sticks his story’s landing with a cautionary quote from a medical cannabis patient in Massachusetts, and it’s too illustrative not to include here: With the vape ban stripping patients of a discreet, helpful medical consumption method, Douglas Luce, a former roofer, testified in court that he was running out of medicine—and fast.

“I’ve got enough [cannabis vape cartridges] probably to go until the end of the week,” Luce said in court. “After that, maybe I’ll go back to taking four oxycodones a day.”