New York – A judge struck down New York’s emergency ban on flavored e-cigarettes, in part ruling that Gov. Andrew Cuomo and authorities exceeded their authority in an attempt to curb the teen vaping crisis.
Acting state Supreme Court Justice Catherine Cholakis ruled that the state Public Health and Health Planning Council overstepped its authority last September when it issued a ban on e-cigarettes and e-liquids flavored with anything other than tobacco or menthol.
In a ruling issued last week in Albany, Cholakis said regulating the vaping industry is a job for the state Legislature, not the executive branch, whose function is to implement the policy set by lawmakers.
The decision comes after federal regulators recently banned some flavored e-cigarette products across the country, and state lawmakers in New York are racing to pursue legislation to broaden restrictions on sales of vaping products.
The emergency ban was challenged by the Vapor Technology Association, an industry group, and two of its member businesses. The judge granted their request for an injunction against enforcing the ban.
The e-cigarette industry argued that the ban would have forced vaping businesses across the state to close. But Democratic Gov. Andrew Cuomo has called vaping a public health crisis and accused “unscrupulous vaping companies” of targeting young people with flavors like cotton candy and bubble gum.
Cholakis noted the decision blocking enforcement of the emergency ban, which state health officials initially approved in September at the behest of Cuomo, is separate from the debate over vaping-related health risks.
She wrote nothing in the order “should be read as in any way trivializing the concern that the availability of flavored e-liquids may well be contributing to the spread of nicotine addiction among our youth.”
The lengthy court battle stemmed from an outbreak of vaping-related illnesses last year in New York and across the country. Cuomo and several other governors quickly moved to ban flavored e-cigarettes, citing the serious lung injuries and striking increases in teenagers vaping.
Vape shops and the Vapor Technology Association filed the lawsuit challenging New York’s emergency ban. They asserted the government overreach would force hundreds of small businesses selling e-cigarettes to close and drive thousands of adult vapers back to smoking combustible cigarettes.
In October, the appeals court in Albany temporarily halted enforcement of the ban just hours before it was to take effect. That ruling sent the lawsuit back to Cholakis, who struck down the ban in the 12-page ruling issued Friday.
The vaping groups and Cholakis also noted nearly all of the vaping illnesses have been linked to marijuana use, as opposed to the e-cigarette devices containing nicotine, court records show.
“As more information becomes available regarding the causes of vaping-related pulmonary disease, informed decisions can be made regarding the ultimate question of whether some or all vaping products should be banned.”Acting state Supreme Court Justice Catherine Cholakis.
Cuomo said last month that he would introduce legislation to ban flavored nicotine e-cigarette products as well as vaping advertisements aimed at youth. He said the legislation would also empower the state Department of Health to ban the sale of vaping carrier oils that have been blamed for respiratory ailments.
A spokesman for Cuomo called Cholakis’ decision “unfortunate” but noted that the judge said in her ruling that she understood the seriousness of the vaping issue.
“That said, we’re reviewing the decision, evaluating our procedural options and moving forward with comprehensive legislation to address the public health concerns related to vaping,” the spokesman, Kyle Kotary, said Saturday.
Regulating e-cigarettes has gained urgency in recent months as the vaping illness has risen nationwide. The Centers for Disease Control and Prevention reports that as of Dec. 17, more than 2,500 people across the United States have reported respiratory issues related to vaping and 54 people are known to have died.
More about New York Ban: