Judge blocks NYS ban on flavored vaping products

Jan 13, 2020

A judge has blocked New York State from enforcing an executive order banning flavored vaping products, but advocates say they will continue to lobby the state legislature to prevent sales.

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 in Albany, Cholakis said regulating the vaping industry is a job for the state Legislature, not the executive branch, whose function is to implement policy set by lawmakers.

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.

“We are very pleased the New York State Supreme Court acknowledged the strength of our position in challenging the legality and constitutionality of the State’s actions," said VTA Executive Director Tony Abboud. "Very simply, bans don’t work, they never have. With this important ruling, the Court has prevented the State from creating a huge new black market and ushering in a new public health crisis along with it – something that may still come to pass if the New York Legislature bans flavors.”

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.

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.

On Monday, representatives of 40 public health groups are scheduled to gather in Albany to request state lawmakers ban the sale of all flavored tobacco products in both traditional and electronic forms.

Regulating e-cigarettes has gained urgency in recent months as 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.