The following is an update from the National Association of Tobacco Outlets (NATO) sourced through their November 7th 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 Rhode Island: A Rhode Island Superior Court judge has issued a ruling denying a request by the Vapor Technology Association and a vape shop retailer for a temporary restraining order against the Rhode Island Department of Health’s emergency regulations that prohibit the manufacture, distribution, sale or offering for sale of flavored vaping products. This means that the current rule banning the sale of all flavored electronic nicotine delivery system devices remains in force and effect. Only tobacco-flavored electronic nicotine delivery devices can be sold by retailers.
|State||Emergency Rule||Effective Dates||Judicial Action|
|Massachusetts||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 Bake wot 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 filed a new Emergency Regulation with the Massachusetts Secretary of State on October 28, 2019.
Two emergency motions seeking to enjoin the Emergency Regulation filed with the Massachusetts Secretary of State on October 28, 2019 were denied on October 30, 2019 by the Suffolk County Superior Court. A public hearing on the Emergency Rule is being scheduled for November 22, 2019 and public comment period will remain open until October 29, 2019.
|Michigan||Prohibits the sale of flavored nicotine vapor products and applied 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 retraining order prohibiting emergency rule from going into effect.|
|Oregon||Prohibits the sale of all flavored nicotine vapor products.||October 15, 2019||Petition for Review filed. On October 17, 2019, Court of Appeals issued a temporary stay of the enforcement of the emergency rule.|
|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.
On November 5, 2019, a Rhode Island court declined to issue a temporary restraining order regarding the Rhode Island Emergency Rule.
|Utah||Prohibits the sale of all flavored electronic nicotine devices, except in “retail tobacco speciality businesses”.||October 7, 2019||Lawsuit filed on October 22, 2019 seeking a temporary restraining order and injunction against the Utah Emergency Rule.
On October 28, 2019, a temporary restraining order prohibiting the enforcement of the Utah Emergency Rule was issued. The next hearing on the litigation is scheduled for November 22, 2019.
|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.Requires display of a sign of warning of the risk of lung disease associated with the use of vapor products. The ban on the sale of flavored electronic vapor products shall remain in place for 120 days until February 7, 2020.||October 10, 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.|