The following is an update from the National Association of Tobacco Outlets (NATO) sourced through their October 21st online bulletin. Reposted with permission.
As part of NATO’s continued reporting on state actions regarding restrictions on the sale of electronic cigarette and nicotine vapor products, below is an update on litigation and other state actions that have occurred this week.
State of Massachusetts: Today, the Suffolk County Superior Court for the State of Massachusetts issued a preliminary injunction against the Commissioner of the Massachusetts Department of Public Health from enforcing the Emergency Order banning the display and sale of all nicotine vaping products from and after October 28, 2019, unless the Massachusetts Executive Branch issues an Emergency Order in compliance with Massachusetts General Laws Chapter 30A, Section 2. This law requires that the state give notice to the public of a proposed regulation, hold a public hearing to allow for testimony and to obtain information, and compile and issue a small business impact statement.
The order goes further to require that the Commissioner of the Massachusetts Department of Public Health will be preliminarily enjoined from implementing and enforcing the Emergency Order from and after December 24, 2019 banning the display and sale of all nicotine vaping products unless the Department of Public Health fully complies with the requirements of General Law 30A, Section 2 by December 24th.
This means that the Department of Public Health has seven days from today to begin the proceedings required under General Law 30A, Section 2 and must complete the entire notice, public hearing, and small business impact statement requirements by December 24, 2019. For this reason, the Emergency Order remains in place and bans the display and sale of nicotine vaping products until further order of this court by October 28, 2019.
The court order was issued as a result of a state lawsuit filed by the Vapor Technology Association and a vape shop owner against the Massachusetts Governor and the Massachusetts Department of Public Health.
In the discussion section of the court order, the Suffolk County judge appears to agree with plaintiffs who brought the lawsuit that they would likely prevail on the merits of the lawsuit. However, the judge notes that he would prefer to not lift the ban on the display and sale of nicotine vaping products because “great uncertainty and confusion would result if the court invalidated the [Emergency] Order immediately, only to see the [Emergency] Order lawfully adopted quickly after such invalidation.” That is, the judge seems to want to avoid granting a preliminary injunction, allowing retailers to sell nicotine vaping products again, only to have the Massachusetts Department of Public Health properly adopt an emergency rule under General Law 30A banning nicotine vaping products resulting in the subsequent removal of products from store shelves a second time.