Vape Shop Owners Sue Massachusetts

Protests rise against the state’s temporary vape-product ban.

October 03, 2019

BOSTON, Mass.—Owners of six Massachusetts vape shops have filed a federal lawsuit against the state over a recent temporary ban on the sale of vaping products. They say five more plaintiffs may join the suit, according to The Wall Street Journal.

The shop owners claim that the state’s recent ban violates the U.S. Constitution and undermines federal regulatory authority. They want the court to overturn the ban and award damages comparable to the amount of operating expenses they are losing each week while the shops stay closed.  

Last week, Massachusetts Gov. Charlie Baker announced the four-month ban on vaping product sales statewide, following reports of severe illnesses and deaths linked to vaping. This is the most aggressive state measure targeting vaping that has been taken. The vaping industry argues that the ban is off base and that the problem is illicit products containing THC, the psychoactive ingredient in marijuana.

“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,” Baker said. The administration didn’t comment on pending lawsuits, a spokesman said.

Vape shop owners say the ban is devastating. One plaintiff, Behram Agha, owns four Massachusetts vape shops. All are now shut down, and he estimates he’ll face $72,000 in operating expenses during the shutdown, while his 11 employees go unpaid. “We’re dependent on sales to run the stores,” he said.

The Vapor Technology Association also plans to sue Massachusetts soon. The trade association estimates vape stores employ 924 people in Massachusetts and support many other jobs. Nationally, vape stores employ more than 56,000, the group said.

Separately on Monday, a federal judge in Michigan denied a company’s request for a quick temporary restraining order against a product ban on flavored electronic cigarettes, while saying he’d consider whether to issue a preliminary injunction later. A state court judge in another case also denied a temporary restraining order against the Michigan rule on Monday while setting up a hearing on injunctive relief. In September, Michigan became the first state to announce a ban on such products.

In a report issued Friday, the Centers for Disease Control and Prevention said about 77% of 514 studied vapers who developed severe lung illnesses used products containing THC. More than half of the patients reported using nicotine-containing products, while 36% said they only used products with THC and 16% reported exclusive use of nicotine-containing products.

Citing a report from Illinois and Wisconsin, the CDC said nearly all THC-containing products reported by patients were packaged, pre-filled cartridges people mainly acquired from friends, family members, illicit dealers or off the street. The CDC recommends that people refrain from use of e-cigarette or vaping products, particularly those containing THC.