By Matt Deorocki
On September 24, 2019, Massachusetts Governor Charlie Baker brought the state into the national spotlight by declaring a state of emergency due to the public health risk emanating from the use of e-cigarettes and vaping products.[1] Nevertheless, instead of passing a regulation pursuant to M.G.L. c. 30A, § 2, which calls for proper notice, a hearing, an opportunity to comment, and a small business impact statement, Governor Baker proceeded pursuant to M.G.L. c. 17, § 2A which states:
upon declaration by the governor that an emergency exists which is detrimental to the public health, the commissioner may, with the approval of the governor and the public health council, during such period of emergency, take such action and incur such liabilities as he may deem necessary to assure the maintenance of the public health and the prevention of disease.[2]
In declaring the state of emergency, authorizing the Commissioner of Public Health to act, Governor Baker pointed to numerous health statistics representing concerns within both the Commonwealth and the nation as a whole, including the fact that “as of September 19, 2019, the CDC had confirmed 530 [vape related] cases across 38 states and U.S. territories, including seven fatalities in six different states.”[3] Additional concerns included that “from 2017 to 2018 vaping use among youths has increased 78% among high school students and 48% among middle school students” and that “Massachusetts youth usage mirrors national trends with 41% of all youth in 2017 reporting trying e-cigarettes and one in five reporting that the use e-cigarettes regularly.”[4]
Baker’s mounting concerns largely involved the combination of chemicals associated with vaping “e-liquid” including propylene glycol, and vegetable glycerin, as well as toxins and metals including “formaldehyde, glycerin, acrylonitrile propylene oxide, crotonaldehyde and acetaldehyde,” nickel, lead, and chromium.[5] Due to the diverse amount of symptoms associated with vaping-related illness such as lung injuries, coughing, abnormal chest x-rays, dropping levels of blood oxygen, lung disease, and seizures, Governor Baker took unprecedented action to reduce the public health risk.[6]
As a result of the September 24, 2019 Declaration of Emergency, the Massachusetts Commissioner of Public Health, Monica Bharel, issued the following order with the approval of both the Governor and the Public Health Council pursuant to M.G.L. c. 17, §2A: “The sale or display of all vaping products to consumers in retail establishments, online, and through any other means, including all non-flavored and flavored vaping products, including mint and menthol, including tetrahydrocannabinol (THC) any other cannabinoid, is prohibited in the Commonwealth.”[7]
According to M.G.L. c. 111 §31, violations could be punished on a per item or per transaction basis and the edict was to be enforced by both the Cannabis Control Commission and the Division of Agricultural Resources.[8] While the ban was ultimately lifted before the tolling of the four-month period of emergency ended, the impact of the executive order had a drastic impact in both Massachusetts and other states which saw increased pressure to institute their own vaping bans and regulations.[9]
Virtually overnight, Massachusetts’ ban became a national topic spurring nationwide conversation on whether Governor Baker and the Commissioner Bharel overstepped their bounds. Vape vendors nationwide articulated that the “epidemic is misguided” and that the “CDC needs to focus their efforts on black market THC cartridges, not regulated vape shops.”[10] Nevertheless, Governor Baker remained firm, articulating “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.”[11] As a result, the ban continued to receive stiff resistance, as displayed by Peggy Mack, a manager at Big Cloud Vape Shop in Springfield, Massachusetts, who expressed her frustration by stating, “[W]e have employees, we have rent to pay . . . It’s like nothing I’ve heard before.”[12]
Eventually, a legal challenge was brought by Vapor Technology Association, Ian Devine, and Devine Enterprise, Inc. (collectively, plaintiffs) which alleged that the emergency order “reflects executive over-reach, . . . violates state constitutional separation-of powers principles, and is arbitrary and capricious.”[13] In fact, plaintiffs were largely successful in articulating that the defendants violated Article 30 of the Declaration of Rights of the Massachusetts Constitution, which reads:
In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers or either of them: to the end it may be a government of laws and not of men.[14]
Judge Wilkins, the Suffolk County Superior Court judge presiding over the matter, stated in his decision that precedent indicates that: “We construe G.L. c. 17 § 2A, to have conferred on the Commissioner, in a declared emergency, powers, which neither he nor the department previously possessed. We do not construe it to have transferred the power to adopt emergency regulations from the department to the Commissioner.”[15]
Thus, the Commissioner lacked the power that she asserted, as such power resides in the Department of Public Health acting in accordance with G.L. c. 30A, § 2.[16] Accordingly, in order to comply with G.L. c. 30A, § 2a and avoid a constitutional violation, a public hearing was required.[17] In addition to a public hearing, G.L. c. 30A, § 2 mandates that notice be given to interested parties and that a small business impact statement containing the following be created: (1) an estimate of the number of small business subject to the proposed regulation; (2) projected reporting, recordkeeping and other administrative costs required for compliance with the proposed regulation; (3) the appropriateness of performance standards versus design standards; (4) an identification of regulations of the promulgating agency or of other agency or department of the commonwealth, which may duplicate or conflict with the proposed regulation; and (5) an analysis of whether the proposed regulation is likely to deter or encourage the formation of new businesses in the commonwealth.[18]
Justice Wilkins articulated that because the Commissioner’s order was devoid of these requirements, it would likely be deemed unconstitutional as well as arbitrary and capricious.[19] As a result, the Commissioner was preliminarily enjoined from implementing and enforcing the Order from and after October 28, 2019 until G.L. c. 30A, § 2 was compiled with.[20] In creating this preliminary injunction, Justice Wilkins likely focused on the 2,530 individuals employed in the vaping industry and the 221 retail vape shops within the state.[21]
While Governor Baker’s new emergency rule was ultimately upheld by Judge Wilkins,[22] and the suit was dropped by Vapor Technology Association on November 7, 2019, Massachusetts’ ban on vaping likely served as a warning for states like North Carolina, which has strong public support for a ban, but significant business concerns among vape shop owners.[23] While Massachusetts has taken numerous steps to create formal vaping regulations to protect consumers since the Governor declared a state of emergency, including a November 30, 2019 vaping control statute and the temporary prohibition of vaporizer products by “licensed Marijuana Establishments and Medical Marijuana Treatment Centers,” controversy remains.[24]
The lessons learned in Massachusetts, the state with the strictest response to the vaping epidemic, present lessons for North Carolina, a state embedded with a rich tobacco history and a strong vaping industry.[25] Although a poll conducted by the Center for Survey Research at East Carolina University indicated that fifty percent of registered voters in North Carolina supported a statewide ban on e-cigarette and vape products, the state never follow Massachusetts’ lead to ban vaping outright, perhaps reflective of the difficulties Massachusetts saw legally and the pinpointing of vitamin E as a main contributor to lung and seizure related symptoms.[26] Instead, of instituting a ban, North Carolina decided to pursue e-cigarette companies themselves, ultimately suing eight companies accused of selling to minors.[27]
Due to the
criticism that Massachusetts saw both in an out of court, and the ultimate
abandoning of the ban in December 2019,[28]
it is unlikely that North Carolina will institute an outright ban on vaping
products anytime in the near future. By waiting for Governor Baker’s state of
emergency to play out, North Carolina was able was able to apprise itself of
the pitfalls of a ban, without emerging onto the national spotlight. In
addition, by waiting, North Carolina benefited from increased knowledge of the
causes of the vape-related illnesses, minimizing the need for a ban. Finally,
with federal law raising the age to purchase tobacco from 18 to 21 and the FDA
planning to ban the sale of “fruity flavor[ed] vape cartridges, it is highly
unlikely that an outright ban on vaping will be seen in North Carolina,
although increased regulatory action could be expected.[29]
[1] Office of Governor Charlie Baker and Lt. Governor Karyn Polito, Massachusetts Governor’s Declaration of Emergency, (Sep. 24, 2019) available at https://www.mass.gov/files/documents/2019/09/24/Governors-Declaration-of-Emergency.pdf.
[2] M.G.L. c. 17, §2A.
[3] Massachusetts Governor’s Declaration of Emergency, (Sep. 24, 2019).
[4] Id.; for additional data see Youth Vaping and Cessation Data, Mass.Gov, available at https://www.mass.gov/files/documents/2019/11/27/youth-vaping-and-cessation-data-11-26-2019.pdf (last visited Dec. 30, 2019).
[5] Massachusetts Governor’s Declaration of Emergency, (Sep. 24, 2019).
[6] Id.
[7] Massachusetts Department of Public Health, Order of the Commissioner of Public Health Pursuant to the Governor’s September 24, 2019 Declaration of a Public Health Emergency (Sep. 24, 2019), https://www.mass.gov/files/documents/2019/09/24/Order-of-the-Commissioner-of-Public-Health-Vaping-Products-9-24-19.pdf.
[8] M.G.L. c. 111 §31; Order of the Commissioner of Public Health Pursuant to the Governor’s September 24, 2019 Declaration of a Public Health Emergency, (Sep. 24, 2019).
[9] Office of Governor Charlie Baker and Lt. Governor Karyn Polito, Massachusetts Governor’s Termination of Public Health Emergency Declared Pursuant to G.L. c. 17 § 2A (Dec. 11, 2019), https://www.mass.gov/files/documents/2019/12/11/2019-12-11-Signed-Declaration-Ending-Public-Health-Emergency.pdf; Elizabeth Anne Brown, Poll: 50 Percent of NC Voters Support Ban on E-Cigs, Vape Products, Citizen-Times (Oct. 25, 2019), https://www.citizen-times.com/story/news/local/2019/10/25/poll-nc-voters-support-vape-ban-2-1-margin/4086030002/.
[10] Taheshah Moise, Triad Vape Shops Say Vaping Epidemic is Misguided, WFMY News (Oct. 9, 2019), https://www.wfmynews2.com/article/news/local/triad-vape-shops-say-vaping-epidemic-is-misguided/83-64605344-c759-48bc-aede-8e4feb1f3130.
[11] Governor Baker Declares Public Health Emergency, Announces Temporary Four-Month Ban on Sale of All Vape Products, Mass.Gov (Sep. 24, 2019), https://www.mass.gov/news/governor-charlie-baker-declares-public-health-emergency-announces-temporary-four-month-ban-on.
[12] Nicholas Bogel-Burroughs, Matt Richtel & Katie Thomas, Massachusetts Orders 4-Month Ban on Sale of All Vaping Products, N.Y. Times (Sep. 24, 2019), https://www.nytimes.com/2019/09/24/us/massachusetts-vaping-ban.html.
[13] Memorandum of Decision and Order on Plaintiff’s Motion for Preliminary Injunction at 1, Vapor Technology Association et al. v. Baker et al., Civ. No. 2019-3102-D, https://masslawyersweekly.com/files/2019/10/Vapor-Technology-Association-et-al-v-Baker-et-al.pdf (last visited Dec. 30, 2019).
[14] Id. at 11
[15] Id. at 13 (citing American Grain Prod. Processing Institute v. Dept. of Pub. Health, 392 Mass. 309, 322 (1984)).
[16] Id. at 13.
[17] Id. at 13; see M.G.L. c. 30a § 2.
[18] M.G.L. c. 30a § 2.
[19] Memorandum of Decision and Order on Plaintiff’s Motion for Preliminary Injunction at 16–22.
[20] Id. at 31.
[21] Id. at 2.
[22] Adrianne Appel, Vaping Ban Gets Second Shot From Massachusetts Governor, Bloomberg Law (Oct. 28, 2019), https://news.bloomberglaw.com/health-law-and-business/vaping-ban-gets-second-shot-from-massachusetts-governor.
[23] Brown, supra note 9; Angus Chen, Mass. Just Lifted Its Ban on Vaping Product Sales. Here’s What You Need to Know, WBUR (Dec. 10, 2019), https://www.wbur.org/commonhealth/2019/11/07/vaping-industry-drops-fed-lawsuit-against-mass-ban; Moise, supra note 10; Shira Schoenberg, Gov. Charlie Baker Files Vaping Ban Regulations with Secretary of State, MassLive.Com (Oct. 28, 2019), https://www.masslive.com/news/2019/10/gov-charlie-baker-files-vaping-ban-regulations-with-secretary-of-state.html;
[24] Massachusetts Governor’s Termination of Public Health Emergency Declared Pursuant to G.L. c. 17 § 2A, (Dec. 11, 2019).
[25] See Nathan Morabito, Vaping Industry Fighting Back Over ‘Hysteria’, WCNC (Oct. 7, 2019), https://www.wcnc.com/article/news/investigations/vape-industry-pushes-back-against-nationwide-panic/275-44d8cf4f-dbb0-4716-ae41-90e90f574752.
[26] Erika Edwards, Vaping Illness ‘Breakthrough’ points to Vitamin E Oil as a Cause, CDC Says, NBC (Nov. 8, 2019), https://www.nbcnews.com/health/vaping/vaping-illness-breakthrough-points-vitamin-e-oil-cause-cdc-says-n1078781; Outbreak of Lung Injury Associated With the Use of E-Cigarette, or Vaping, Products, CDC.Gov, https://www.cdc.gov/tobacco/basic_information/e-cigarettes/severe-lung-disease.html (last visited Dec. 30, 2019).
[27] Merrit Kennedy, North Carolina Says it is Suing 8 E-Cigarette Companies, NPR (Aug. 27, 2019), https://www.npr.org/2019/08/27/754717176/north-carolina-says-it-is-suing-8-e-cigarette-companies.
[28] Massachusetts Governor’s Termination of Public Health Emergency Declared Pursuant to G.L. c. 17 § 2A, (Dec. 11, 2019).
[29] See Jennifer Maloney & Thomas Burton, FDA to Ban All E-Cigarette Pod Flavors Except Tobacco and Menthol, Wall Street J. (Jan. 1, 2020, 2:33 PM), https://www.wsj.com/articles/fda-to-ban-all-e-cigarette-pod-flavors-except-tobacco-and-menthol-11577833093; Selling Tobacco Products in Retail Stores, FDA.gov, https://www.fda.gov/tobacco-products/retail-sales-tobacco-products/selling-tobacco-products-retail-stores (last visited Dec. 30, 2019).