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NATO Update: Update on State Emergency Vaping Regulations

The following is an update from the National Association of Tobacco Outlets (NATO) sourced through their October 28th online bulletin. Reposted with permission.

Update on State Emergency Vaping Regulations

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: On October 24, 2019, a Massachusetts Appeals Court denied an appeal by Governor Charlie Baker that sought to stay the Suffolk County Superior Court order that required proceedings be commenced by October 28, 2019 to properly adopt an emergency order banning the display and sale of all nicotine vaping products. The Baker Administration proceeded to initiate the proper proceedings on Friday, October 25, 2019 through the Massachusetts Department of Public Health.

In addition, the same Massachusetts Appeals Court denied a motion by the plaintiffs in the pending litigation, including the Vapor Technology Association, that sought to lift the display and sales ban immediately.

This means that the Suffolk County Superior Court order will remain in place and allows the Massachusetts Department of Public Health to prohibit the display and sale of all nicotine vaping products while the department gives notice to the public of the emergency regulation, holds a public hearing to allow for testimony and to obtain information, and compiles a small business impact statement. All of these steps need to be completed by December 24, 2019.

Chart of State Emergency Rules: An updated chart on the status of state emergency rules regarding vapor products accompanies this bulletin.

State Emergency Rule Effective Dates Judicial Action
Massachusettes

Banned the sale and display of all vaping products

September 24, 2019 (expires January 25, 2020 unless extended)

Lawsuit Filed October 1, 2019 in U.S. District Court. On October 21, 2019, the Suffolk County Superior Court issued a temporary restraining order staying enforcement of the Massachusetts Emergency Rule unless the state begins proceedings under state law to hold a public hearing on prohibiting the sale of all vaping products.

On October 24, 2019, a Massachusetts Appeals Court denied a motion by Governor Charlie Baker to stay the temporary restraining order and denied a motion by the plaintiffs requesting that the emergency rule be overturned immediately.

The Massachusetts Department of Public Health has begun the formal process to adopt an emergency regulation which means that the ban on the display and sale of all vapor products in the state remains in place.

Michigan

Prohibits the sale of flavored nicotine vapor products and applies tobacco advertising restrictions to nicotine vapor products

October 2, 2019

Three lawsuits filed. Preliminary injunction issued on October 16, 2019 staying enforcement of the Michigan Emergency Rule.

Montana

Prohibits the transportation, distribution and sale of flavored vaping products.

October 22, 2019

Lawsuit filed. On October 18, 2019, Ravalli County District Court issued a temporary restraining order prohibiting the enforcement of the emergency rule. A preliminary injunction hearing is scheduled for October 30, 2019.

New York

Prohibits the possession, manufacture, distribution, offer to sell, or sale of flavored e-liquids or a product containing flavored e-liquids, except tobacco-flavored and menthol flavored e-liquid products.

Pending legal action

Lawsuit filed. On October 3, 2019, Appellate Division of the New York Supreme Court issued a temporary restraining order prohibiting emergency rule from going into effect.

Rhode Island

Prohibits the sale of all flavored electronic nicotine delivery system devices

October 4, 2019

Lawsuit filed on October 23, 2019 seeking a temporary restraining order and injunction against the Rhode Island Emergency Rule.

Utah

Prohibits the sale of all flavored electronic nicotine devices, except in “retail tobacco specialty businesses”

October 7, 2019

Lawsuit filed on October 22, 2019 seeking a temporary restraining order and injunction against the Utah Emergency Rule.

Washington

Prohibits the sale, offer to sell, or possession with intent to sell of flavored electronic vapor products, excluding tobacco-flavored and marijuana flavored vapor products, including on-line.

October 7, 2019 (expires February 7, 2020)

Lawsuit filed on October 20, 2019 seeking a temporary restraining order and injunction against the Washington Emergency Rule. A hearing on the motion for a temporary restraining order is scheduled for October 28, 2019.

States Not Taking Action:

Arizona: Governor Ducey does not believe the state should ban the sale of flavored nicotine vaping products.

California: Governor Newsom supports a ban, and has ordered increased enforcement of existing laws, but did not issue any prohibition in light of the Legislature’s failure to pass such a bill in the recent session.

Minnesota: Governor Walz has acknowledged that the state lacks the authority to restrict sales of nicotine vapor products.

Ohio: Governor DeWine has acknowledged that state agencies lack the authority to ban nicotine vapor or flavors by executive order or administrative rule.

State Legislative Bill Introductions

State tobacco-related legislative bills that have been introduced in the past week are listed below alphabetically by state:

Washington D.C.: Bill 453 amends an act to prohibit the sale of tobacco to minors under a certain age and prohibits the sale or distribution of a flavored electronic smoking device; Bill 454 prohibits the sale of any electronic smoking device or liquids used in electronic smoking devices, unless the sale occurs at a licensed pharmacy to a person who has a prescription; Bill 472 amends an act to prohibit the sale of tobacco to minors under sixteen years of age in the District of Columbia and to prohibit the sale or distribution of an electronic smoking device within a quarter mile of a middle or high school.

State Legislative Bill Actions

State tobacco-related legislative bills that have been acted on by a state legislative committee or state legislature are listed below alphabetically by state:

Illinois: House Bill 3883, which prohibits the sale of menthol cigarettes and all flavored tobacco and vapor products, will be considered in an informational hearing in the House Human Services Committee on October 28, 2019.

Federal Legislative Bill Actions

Tobacco-related legislative bills that have been acted on by Congress are listed below:

House Bill 4742: Passed the House Ways and Means Committee on October 23, 2019. This bill would tax vapor products at the same federal excise tax rate as cigarettes.