In a victory for vapers and vape shop owners, a state appellate court imposed a temporary restraining order on New York’s intended ban on flavored vaping products on October 4—a day before it was due to take effect.
The lawsuit that secured this stay of execution was filed by the trade group Vapor Technology Association, and by Benevolent ELiquids Inc. and Perfection Vapes, two local businesses. “We are very pleased with the New York State Appellate Division’s decision, which acknowledges the strength of our claims about the State’s executive overreach, and which preserves the ability of hundreds of small businesses to remain open and continue to serve their adult customers,” Tony Abboud, executive director of the association, said in an emailed statement.
”As a business owner, I am thrilled that a judge was able to see that this is not an emergency situation,” Spike Babaian, the owner of NYC’s VapeNY stores and a harm reduction advocate, told Filter. “The real emergency is hundreds of thousands of New Yorkers who almost went back to smoking.”
Filter’s recent film interviewing New Yorkers who used flavored vapes to quit smoking illustrated the likelihood of a flavor ban having this impact. This threat has also been emphasized by scientists of the caliber of Dr. David Abrams, of NYU College of Global Public Health, and Dr. Michael Siegel, of Boston University School of Public Health.
But the legal fight is far from over. The state now can’t enforce a ban on flavored nicotine products until a ruling on the motion for a preliminary injunction is issued. That motion is scheduled to be taken up by the court on October 18. What happens then is anybody’s guess, but the forces ranged in favor of the ban are formidable.
They include former New York City mayor and billionaire Michael Bloomberg. His organization, Bloomberg Philanthropies, has just launched a thoroughly misguided $160 Million Program to “End the Youth E-Cigarette Epidemic.” According to a press release, the goal of the initiative is to “Protect Kids: Fight Flavored E-Cigarettes” and includes banning all flavored e-cigarettes. The Campaign for Tobacco-Free Kids will direct the program.
Governor Cuomo and the New York State Public Health and Health Planning Council had cynically tried to rush through emergency regulations to ban all flavors, including menthol, by leveraging public panic over the so-called “epidemic” of teen vaping and the lung disease outbreak that has so far led to 18 reported deaths and the sickening of hundreds of people.
Available evidence overwhelmingly links the deadly outbreak to vaping adulterated, illicitly manufactured THC cartridges. Overwhelming evidence—not least the total absence of previous such outbreaks in over a decade of nicotine vaping by millions worldwide —also suggests that vaping regulated, flavored nicotine products is not the cause.
But these circumstances didn’t stop the governor and state health authorities, who are hell-bent on passing a flavor ban.
“It is undeniable the vaping industry is using flavored e-cigarettes to get young people hooked on potentially dangerous and deadly products,” said New York State Health Commissioner Howard Zucker in response to the court ruling.
Zucker has been locked in a battle with New York vape shop owners over flavors for several years. The New York State Vapor Association has worked with state legislators to address teen vaping through marketing and packaging restrictions, supports vape shop licensing and mandatory training for employees, did not oppose raising the minimum age to purchase vaping products from 18 to 21, and supports rigorous customer ID checks. The regulation of vaping stores is similar to stores that sell alcohol. But Zucker isn’t having it.
He refuses to acknowledge the critical and well-documented role that flavors play in helping adult smokers switch, or the key role that knowledgeable vape shop staff play in helping people quit smoking.
Instead, Zucker and his allies continue to put out misinformation and whip up fear. “While the court’s ruling temporarily delays our scheduled enforcement of this ban,” he said, “it will not deter us from using every tool at our disposal to address this crisis. Make no mistake: This is a public health emergency that demands immediate action to help ensure the well-being of our children, and we’re confident once the court hears our argument they will agree.”
Correction, October 8: A previous version of this article stated that the New York State Vapor Association supported raising taxes on vape products. This is not the case.
Photo of a protester against a proposed NYC ban on flavored vapes in January 2019 by Filter.