Governor Baker Institutes Immediate Ban on Vaping Products

In response to the growing crisis around vaping-related illness, Governor Baker has declared a public health crisis and issued a four-month ban on the sale of all vaping products in Massachusetts. The state’s Public Health Council subsequently issued a formal approval of the ban shortly thereafter. The ban – which went into effect immediately on September 24th – is set to last through late January 2020.

Since the media first reported on the issue, doctors have identified more than 530 confirmed or possible cases of vaping-related illnesses across 38 states, according to the Centers for Disease Control (“CDC”). And while the CDC has reiterated that many patients have in fact used THC-based products, some obtained on the street rather than from state-licensed recreational or medical marijuana retailers, the exact cause of such vaping-related illnesses has yet to be determined. Nonetheless, Massachusetts’ officials have reported 61 possible cases of vaping-related illnesses in the state as of this week, including among teenagers — a jump from 38 just last week. In light of this uncertainty, the Governor has halted all sales to allow for investigations by both medical and law enforcement authorities, at both the state and federal level.

Pursuant to the Governor’s declaration and the Order of the Public Health Commissioner, the ban shall apply to sales of both tobacco and marijuana electronic cigarettes. The order defines “vaping products” as:

…any product intended for human consumption by inhalation regardless of nicotine content, whether for one-time use or reusable, that relies on vaporization or aerosolization, including but not limited to electronic cigarette, electronic cigars, electronic cigarillos, electronic pipes, electronic vaping product delivery pens, hookah pens, and any other similar devices that rely on vaporization or aerosolization; and any component, part, or accessory of a product or device defined in subsection 1), even if sold separately.

The Governor is not alone in his concern. Last June, San Francisco became the first major city in the country to ban the distribution or sale of e-cigarettes and earlier this month both New York and Michigan banned the sale of flavored e-cigarettes. Just yesterday, Rhode Island joined New York and Michigan in banning the sale of flavored e-cigarettes.

“The use of e-cigarettes and marijuana vaping products is exploding and we are seeing reports of serious lung illnesses, particularly in our young people,” Baker said in a statement Tuesday. “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.”

However, Massachusetts remains the only state to have fully banned the sale of all vaping products. This ban, which the Boston Globe has called “the most sweeping prohibition targeting e-cigarettes in the U.S.,” will have significant repercussions for the entire industry. To this end, Burns & Levinson has convened an ad hoc group of local industry operations, consultants, lawyers, and other experts in Massachusetts to address the concerns of the industry head on. This group hopes to provide an organized and comprehensive response to the ban and open up a collaborative dialogue with the administration. This is a fluid situation and we are here to provide nimble and thoughtful leadership to the cannabis industry at large.