BOSTON — Gov. Charlie Baker has appealed a Superior Court judge’s ruling that would lift the governor’s four-month ban on the sale of nicotine vaping products on Monday unless the administration makes changes.
The governor’s office and Attorney General Maura Healey’s office confirmed that the appeal had been filed, along with a motion asking the Appeals Court to stay the judge’s ruling in order to keep the full ban in place while the case proceeds.
Suffolk Superior Court Judge Douglas Wilkins ruled on Monday that Baker and Public Health Commissioner Monica Bharel may have overstepped their authority in ordering a halt to the retail and online sale of all nicotine and marijuana vaping products in Massachusetts.
The ban was intended to give the federal government time to investigate an outbreak of vaping-related lung injuries around the country, including one death and 28 cases of illness reported in Massachusetts, and went further than any other state ban in the country.
It was challenged, however, by the Vapor Technology Association as an executive overreach that causing deep financial harm to small business owners.
While the judge’s order did not apply to marijuana vaping products, Wilkins ruled that Baker should reissue the nicotine vaping ban as an emergency regulation, which would require the administration to produce a small business impact statement and hold a public hearing.
An emergency regulation retroactive to Sept. 24 would also expire on Christmas Eve, a month earlier than Baker intended.
Court records indicate that a notice of intent to appeal was filed with the Superior Court on Monday, the same day Baker said the administration would probably need “a day or two” to decide how to proceed.
Attorneys for the administration have requested an expedited briefing in the Appeals Court for a judge to hear their motion for a stay, and the governor’s office said Baker will decide with Healey’s office how to proceed based on what happens with the motion.
“The administration maintains that the order was properly issued pursuant to the Commissioner’s emergency powers and will work with the Attorney General’s Office on next steps,” said Baker communications director Elizabeth Guyton.
The Centers for Disease Control has still not pinpointed the cause of the rapid growth in vaping-related lung injuries, but there has been evidence linking many of the cases to black market, marijuana vaping devices.
Baker on Tuesday morning said the ban was launched “to put a pause on the market and to give legislators, regulators, data scientists, health care professionals and others a chance to try and figure out just what exactly was going on here.”
Gregory Conley, president of the American Vaping Association, said that there’s enough evidence linking the illnesses to THC vaping that Baker should just lift the ban.
“The governor’s ban on nicotine vaping products has already killed jobs and sent ex-smokers back to smoking. It was rushed through with no scientific justification, and no input from the small business owners who employ 2,500 people in Massachusetts and make up a $331 million industry,” Conley said in a statement Tuesday morning.
“In light of the growing evidence linking these tragic illnesses and deaths to illicit THC cartridges, Gov. Baker should respond to yesterday’s court decision by declaring an end to Massachusetts’ senseless ban on America’s most popular tool to quit smoking,” he said.
A number of medical marijuana patients and advocates, including Will Luzier of the New England Cannabis Network, also sought to join the Superior Court case brought by the Vapor Technology Association, filing papers in Superior Court to become intervenors.
The court records indicate the group feels “their medical marijuana issues are not adequately represented by the existing plaintiffs,” and the new plaintiffs are seeking their own preliminary injuction.
While the Superior Court order did not impact the ban on the sale of marijuana vaporizers, the administration said separate lawsuits related to marijuana are ongoing.