A state Supreme Court justice has struck down New York’s ban on the sale of certain flavored electronic liquids, granting an injunction sought by the vaping industry that challenged the legality and constitutionality of an emergency order issued last year by Gov. Andrew M. Cuomo and the state Health Department.
The ban was issued in September by the state Department of Health’s Public Health and Health Planning Council, a day after Cuomo signed an executive order to ban the sale of e-flavored cigarettes and related products. The swift action, which the vaping industry said would cripple it is more than the billion-dollar-a-year industry in New York, followed an outbreak of vaping-related illnesses and deaths across the country.
Acting state Supreme Court Justice Catherine Cholakis late Friday sided with a vaping trade group that argued the ban was “an impermissible administrative transgression” into lawmaking and policy actions reserved to the Legislature by the State Constitution.
What the FDA Vaping ban targeted?
The Food and Drug Administration this month said that it will ban fruit- and mint-flavored products used in e-cigarettes and vaping products while allowing vape shops to sell flavors from tank-based systems.
The flavoring ban does not apply to menthol and tobacco-flavored products.
Vaping shops won a concession that will temporarily allow them to sell flavors in stores from tank-based systems, which allow people to mix their own nicotine and vaping juice.
U.S. Health and Human Services Secretary Alex Azar said the rule aims to “strike the right public health balance” by targeting products widely used by children while allowing vaping as a “potential off-ramp” for adults who want to quit smoking.
The long-anticipated federal action unfolded amid a sharp rise in teenagers vaping nicotine and THC and a vaping-related lung injury epidemic that has hospitalized 2,561 and led to 55 deaths.
As of Monday, New York has seen 230 vaping-related illnesses and two deaths.
“We will not stand idly by as this crisis among America’s youth grows and evolves, and we will continue monitoring the situation and take further actions as necessary,” Azar said.
What is next for New York’s Vaping ban?
Some New York lawmakers and public health and anti-tobacco groups criticized the Trump administration and FDA plan as not going far enough to stem an emerging public health threat.
“After initially proposing a comprehensive ban on dangerous e-cigarette products, the FDA’s final rule fails to regulate many flavored vaping liquids that Big Tobacco uses to lure in a new generation of nicotine addicts.”State Sen. Brad Hoylman, D-Manhattan, said in a statement.
“This latest failure from the Trump Administration means New York must step in to fill the gap. We must ban all flavored e-cigarette products, including flavored e-liquids used in tank vaping systems,” he added.
Hoylman has proposed legislation to ban all flavored vaping products that are expected to be debated during the legislative session that started last week.
- Opposition: New York flavored e-cigarette ban under attack by vape shops, vaping industry, vapers
- Lawsuit: Appeals court halts NY flavor ban hours before enforcement was set to begin
How New York emergency e-cigarette flavor ban failed?
It noted the key Department of Health panel that ultimately approved the ban improperly attempted to establish many new controls on the vaping industry.
“The emergency regulation is less an effort at filling in the blanks left by broad legislation and more an attempt to set a State policy strictly limiting the availability of vaping products in New York,” Cholakis wrote.
“This is an action reserved constitutionally to the Legislature and not to the executive branch (nor, for that matter, to the judiciary),” she added.
Further, Cholakis repeatedly referenced how the Legislature is trying to address mounting concerns about youth e-cigarette use.
“Of grave concern is the fear that this practice will reverse the hard-won recent trend toward reduced nicotine addiction among our youth.”
“It is widely believed that the vast array of fruit- and candy-flavored e-liquids are at the root of the attraction of vaping to the young.”Cholakis wrote.
“The Legislature could opt to await the passage of some period of time to gauge whether this legislation is sufficient in itself to stem the increase in vaping among teenagers,” she wrote.
Yet lawmakers and health officials have cited the growing ranks of young New Yorkers getting addicted to vaping flavors that mimic candy, desserts, and fruits as the reason for the emergency ban and urgent efforts to pass similar legislation.
“Nearly 40% of 12th-grade students and 27% of high school students are now using e-cigarettes and this increase is largely driven by flavored e-liquids,” Health Commissioner Dr. Howard Zucker said on Sept. 17, citing major spikes in youth e-cigarette use since 2014.
Cuomo’s office and the Attorney General’s Office, which represented the state in the case, didn’t immediately respond to requests for comment on the order.
It effectively blocked the emergency flavor ban by granting a preliminary injunction, citing the likelihood that the state would lose the case.
New York Attorney General Letitia James is also pursuing a lawsuit against industry leader Juul Labs, claiming the San Francisco-based company illegally marketed flavored e-cigarettes to teenagers in New York and across the country.
Juul officials have said the company is “focused on resetting the vapor category in the U.S. and earning the trust of society by working cooperatively with attorneys general, regulators, public health officials and other stakeholders to combat underage use and convert adult smokers from combustible cigarettes.”