Judge to hear argument Friday for preliminary injunction in vape ban suit

BOSTON MA. – SEPTEMBER 24: Gov. Charlie Baker declared a public health emergency due to vaping-related lung illnesses and announced a four-month ban on the sale of vaping related products during a press conference at the State House on September 24, 2019 in Boston, MA. (Staff Photo By Nancy Lane/MediaNews Group/Boston Herald)

Gov. Charlie Baker’s vape ban will be challenged in federal court this week, as a judge is scheduled to hear an argument for a preliminary injunction on behalf of vape operations in three New England states who filed a second federal lawsuit against the ban Tuesday.

Federal Judge Indira Talwani will hear oral arguments for the motion at 11 a.m. Friday in U.S. District Court, by vaping businesses in Connecticut, New Hampshire and Massachusetts that are challenging Baker’s four-month ban. The suit alleges 2,530 workers and hundreds of millions in economic output are being affected by the action which was abruptly issued last month.

“For Massachusetts’ $331 million vapor-products industry, it is an extinction-level event,” the motion for a preliminary injunction states.

Vapor Technologies Association, an industry trade association in Washington, D.C., filed the suit Tuesday in Massachusetts District Court. Out-of-state operations who joined the suit accuse the ban of harming their businesses, which supply Massachusetts shops and attract regional customers.

The suit emphasizes the wide-ranging impact of the governor’s ban on all vaping-related products last month, stating more than 2,000 workers from nine manufacturers and 221 retail vape shops will be affected.

The suit comes after Boston and Medford vape shops joined a Danvers shop’s federal lawsuit Sunday, the first legal challenge to Baker and Department of Public Health Commissioner Monica Bharel’s ban.

Last week, Baker defended the emergency ban, calling it “the right choice” after a multistate outbreak of lung injuries, including the number of people in Massachusetts with vaping-related lung injuries doubling recently, the state’s health department reported Monday.

Monday’s lawsuit states the governor’s order makes no distinction between products that contain THC and those that do not, and no distinction between black-market products and federally-regulated products.

The shops affected contribute $18,982,100 in state taxes, and consumers generate $10,773,000 in sales taxes, the suit states.

“This unconstitutional and ill-conceived action by the Commonwealth of Massachusetts will destroy the $331 million nicotine-vapor-products industry in Massachusetts, shuttering hundreds of small businesses, creating irreparable harm to the many law-abiding retailers, manufacturers, and distributors of these products located in (and out of) the state and the 2,500 workers that the industry ecosystem employs in Massachusetts,” said Executive Director of the Vapor Technology Association Tony Abboud in a statement.

The DPH has received reports of 83 suspected vaping-associated pulmonary cases since Sept. 11, while 10 statewide unexplained lung injuries have been reported under a state mandate.

“The administration will continue to work with medical experts and federal and state officials to better understand why vaping is causing lung-related illnesses and consider all options as next steps,” a spokesman for Baker said in a statement, declining to comment on pending lawsuits.

Attorney William Fick of Fick & Marx LLP, a Boston-based law firm, did not respond to a request for comment.