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Hearing today for challenge to Massachusetts' ban on vaping product sales

Federal Court

By Karen Kidd | Oct 15, 2019

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BOSTON (Legal Newsline) – A hearing is scheduled for today for a federal judge to reconsider whether to place on hold Massachusetts' emergency four-month ban on vaping product sales after previously finding e-cigarette organizations hadn't made their case for a temporary halt.

U.S. District Court of Massachusetts Judge Indira Talwani scheduled the hearing for Tuesday when on Oct. 4 she denied a motion by vaping industry organizations for a temporary restraining order on the ban.

"The court finds that plaintiffs have not demonstrated a substantial likelihood of success on the merits or that the balance of hardships between the parties weighs in plaintiffs' favor," Talwani wrote in her Oct. 4 order. "The court finds further that granting the request for a temporary restraining order would conflict with the public interest."

Plaintiff vaping organizations, including lead plaintiff trade group Vapor Technology Association (VTA), filed suit in the district court Oct. 2 challenging the commonwealth's ban on vaping product sales in Massachusetts.

The ban was put in place Sept. 24 by Massachusetts Gov. Charlie Baker, who declared a public health emergency, and Public Health Commissioner Monica Bharel, who signed an order that banned in-store and online vaping product sales in Massachusetts until Jan. 25.

"The use of e-cigarettes and marijuana vaping products is exploding and we are seeing reports of serious lung illnesses, particularly in our young people," Baker said in a statement issued the same day as his declaration. "The purpose of this public health emergency is to temporarily pause all sales of vaping products so that we can work with our medical experts to identify what is making people sick and how to better regulate these products to protect the health of our residents."

The ban threatens vape shops with "extinction," a threat "which will play out across the hundreds of vape shops across Massachusetts," Vapor Technology Association and the other plaintiffs claim in their 20-page complaint. Baker and Bharel are named defendants in the complaint.

"For individual vape shop owners, the unexpected and prolonged loss of their business likely will lead to financial crisis and business ruin," the complaint said.

Other plaintiffs in the case, all VTA-member retailers, are Ian Devine of Devine Enterprise, Christopher Austin of Rising Sun Vapors and Ohmerica, and Adam Webster of The Steam Co.

The plaintiffs are represented by attorneys of Fick & Marx in Boston and Williams and Connolly in Washington, D.C.

U.S. District Court for the District of Massachusetts case number 1:19-cv-12048

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U.S. District Court for the District of Massachusetts