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Update on State Emergency Vaping Regulations

The following is an update from the National Association of Tobacco Outlets (NATO) sourced through their October 30th online bulletin and updated November 14th. 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 30, 2019, the Superior Court of Suffolk County, Massachusetts denied two emergency motions by the Vapor Technology Association that sought to enjoin the enforcement of the Massachusetts Department of Public Health Emergency Regulation filed on October 28, 2019 banning the sale of all nicotine vaping products.  A copy of the Superior Court of Suffolk County decision accompanies this bulletin.  This means that Massachusetts retailers are still prohibited from selling nicotine vaping products.

Also, in responsive documents filed by the Massachusetts Department of Public Health regarding the emergency motions, the Department of Public Health stated that a notice will be issued on November 1, 2019 scheduling a public hearing on the Emergency Regulation for November 22, 2019 and allowing the public to submit comments on the Emergency Regulation until November 29, 2019.

State of Utah:  On October 28, 2019, a decision was issued by the Utah Third District Court granting a temporary restraining order against enforcement of the Utah Department of Health’s (UDOH) emergency rule to prohibit the sale of all flavored electronic nicotine devices, except in “retail tobacco speciality businesses” and to require that all tobacco retailers display a state-issued sign regarding the dangers of vaping unregulated THC products.

This means that retailers can once again begin selling flavored nicotine vaping devices.  The next hearing on the pending litigation is scheduled for November 22, 2019.

Chart of State Emergency Rules

An updated chart on the status of state emergency rules regarding vapor products is below:

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.

On November 14, 2019, the Oregon Court of Appeals issues a preliminary injunction further staying the Oregon Emergency Rule prohibiting the sale of all flavored nicotine vapor products.

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 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.

A Thurston County Judge issued a ruling on November 8, 2019 denying a temporary restraining order against the Washington Emergency Rule.

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 acknowledge 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.