Gov. Charlie Baker’s appeal against a judge’s ruling that his administration overstepped its authority by failing to follow a required process in creating the vaping product sales ban has been rejected.
The appeal ruling, issued Wednesday, upheld Suffolk Superior Court Judge Douglas Wilkins’ earlier ruling that Baker’s administration failed to hold a public hearing to analyze the impact the four-month ban would have on small businesses and formally put the emergency regulation in place.
Baker’s administration, since rolling out the policy last month, had maintained that the law gives the state’s chief executive unilateral authority to handle an urgent public health emergency.
Wilkins ordered that sales of nicotine vaping products are allowed to begin again on Monday unless officials begin to implement the ban as an emergency regulation, which would require them to hold a public hearing by Dec. 24. The ban on marijuana vaping product sales is unaffected by the ruling.
State appeals court Judge Kenneth Desmond, Jr. agreed with Wilkins’ analysis.
“The Superior Court judge held three days of hearings in this matter and heard testimony from witnesses for both sides,” Desmond wrote in the filing. “The lengthy memorandum of decision and order issued by the Superior Court judge after those hearings is thoughtful, thorough, and balanced. I am not persuaded that the defendants have established a likelihood of success on appeal. The Superior Court carefully balanced all of the equities concerned, including, but not limited to, financial and public health concerns, when it crafted its order.”
In a statement, Terry MacCormack, Baker’s deputy communications director, told Boston.com Thursday the administration is working to make sure the ban remains in effect.
“The administration declared a public health emergency and imposed a temporary ban on all vape products to allow medical professionals to better understand what is making people sick and resulting in deaths in some cases, and is working on next steps with the attorney general’s office to ensure the ban remains in place,” the statement says. “The Centers for Disease Control has issued clear warnings stating that the outbreak of these vaping-related illnesses and deaths cannot at this time be attributed to a single substance or products and has urged users to stop vaping all nicotine and marijuana products.”
Earlier on Wednesday, during his monthly appearance on WGBH’s “Boston Public Radio” before the appeal was shot down, Baker had defended the steps his administration took.
“I would say we and the attorney general believe the process we used was consistent with state law,” Baker said.
Asked by co-host Jim Braude why officials wouldn’t just hold the public hearing, the Swampscott Republican said the issue extends beyond this specific instance.
“We believe what we did, we have the statutory authority to do,” Baker said. “The (attorney general) agrees with us and the AG is representing us before the court on this.”
“I think from our point of view there is a bigger question at stake here, about whether or not we have the authority to implement a public health emergency,” he added.
The state Department of Public Health also announced Wednesday it has reported 17 new cases of vaping-associated medical problems in Massachusetts to its federal counterparts, raising the total of confirmed and probable cases in the commonwealth to 46.
To date, the department has fielded 184 reports of suspected cases from physicians. A woman in her 60s from Hampshire County died earlier this month.
On WGBH Wednesday, Baker continued to stress the necessity of the ban, which has been sharply criticized by consumers, business owners, and industry experts since it was put in place last month.
“This is a tough call — I get it and I know why people are unhappy with it and don’t support it,” he said. “But based on the data that was available to us and the input that we were getting from the healthcare community, we felt this was the right thing to do.”
Nationally, 1,479 lung injury cases associated with vaping had been reported in every state except Alaska, including 33 deaths, as of Oct. 15, according to the Centers for Disease Control and Prevention. Officials have not determined a specific cause or tied any product to the outbreak.
Of the 46 cases reported by Massachusetts, 19 patients reported vaping only tetrahydrocannabinol, or THC, an active ingredient in marijuana, the DPH said. Twelve patients reported vaping both THC and nicotine, while 11 reported vaping nicotine alone. Less than five reported vaping CBD “and fewer than five (said) the substance was unknown,” the department said.
Baker received praise for the ban from two callers on the “Ask the Governor” segment Wednesday. Another caller, noting the significantly high number of deaths attributed to cigarette use, asked him when he would ban those as well.
“I totally get the point you’re making,” he said. “It’s not a secret that cigarettes are dangerous and are especially dangerous if you smoke them over a long period of time.”
However, Baker said, vaping was initially promoted as a safe alternative.
“Not just safer than something else, but safe,” he said. “And it’s pretty clear at this point that under certain circumstances it’s not safe. I mean, some of these people who got sick, the way their injury was described is the equivalent of a chemical burn that you would get in your lungs from like a toxic spill somewhere, and some of the people who died were not vaping long at all.
“I think one of the challenges we face here is if in fact there are issues around vaping that translate into significant injury, potentially permanent damage, and in some cases death, with relatively infrequent use, we need to figure out what those are and put a regulatory program in place to protect people from it,” Baker added. “This is a temporary ban — four months. Pause. Collect the data, figure it out.”
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