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Massachusetts Orders Four-Month Moratorium on Vaping Products

On September 24, 2019, Massachusetts Governor Charlie Baker declared a public health emergency, and Public Health Commissioner Monica Bharel ordered the sale or display of vaping products in retail establishments, online, or through other means, to be prohibited in the Commonwealth. The moratorium “takes effect immediately and shall remain in effect, unless extended with the approval of the Governor and the Public Health Council, through January 25, 2020, or until the declared public health emergency is terminated, or the Order is otherwise rescinded by [the Commissioner], whichever happens first.”

The Declaration

In a public statement, Government Baker explained, “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.”

The declaration comes less than two weeks after the Commissioner “declared cases of unexplained vaping-associated pulmonary diseases to be immediately reportable to the Massachusetts Department of Public of Health . . . and further authorized [the Department] to conduct surveillance activities necessary for the investigation, monitoring, control and prevention of this disease.” To date, sixty residents have been reported as having lung injuries that are “potentially related to vaping,” and five of these met the federal Center for Disease Control’s “case definition of confirmed or probable cases.”

The Governor’s declaration also acknowledges the existing federal investigation by the Center for Disease Control and the Food & Drug Administration into the “multistate outbreak of severe lung disease associated with the use of vaping products including but not limited to e-cigarettes.” According to the Governor’s declaration, “although the recent outbreak is associated with vaping products, the specific cause of this disease is unknown.”

The Moratorium

The moratorium was provided in the Commissioner’s order. It reads as follows: “The sale or display of all vaping products to consumers in retail establishments, online, and through any other means, including all non-flavored and flavored vaping products, including mint and menthol, including tetrahydrocannabinol (THC) and any other cannabinoid, is prohibited in the Commonwealth.”

The Four-Month Period

According to the Commonwealth’s website, the length of the moratorium has been determined in recognition that the federal investigation “is in the early stage.”

The four-month period “gives Massachusetts and [its] national partners time to work towards identifying the specific cause of the illness.” The Governor’s press release indicates that “the Administration will work with medical experts, state and federal officials to better understand vaping illnesses and work on additional steps to address this public health crisis. This could include legislation and regulations. The Administration will also work on providing more resources for a public awareness campaign and smoking cessation programs.”

As to whether the moratorium may be extended, the Commonwealth’s website advises that the Department “will need to evaluate status as” the “four month mark” nears, but it is “hopeful that the investigation will move quickly.”

Additional Information

The Department of Public Health has provided additional information concerning the moratorium on the Commonwealth’s website.

Of particular note for retailers, the website indicates that the Department “is developing guidance documents to assist retailers in complying with this order. In addition, local health departments will be assisting in the education of retailers.” “[A]t this time,” the Department is “not expecting that product be destroyed;” however, it is “requiring that products be taken off of the shelves immediately.”

The Commonwealth’s website also includes the Commissioner’s implementation memo to local boards of health.

Other Recent Efforts in the Commonwealth

Massachusetts’ declaration and moratorium appear to be the first of their kind in the United States. They follow other recent efforts in the Commonwealth to increase regulation and enforcement vis-à-vis vapor (and other tobacco) products.

In January 2019, House Bill 1902 and Senate Bill 1279 were introduced to enact statewide prohibitions on the sale, distribution, or offering for sale any flavored tobacco product to any consumer, except in a smoking bar.   The bills remain pending, with Massachusetts Attorney General Maura Healey having testified in their favor on July 19.

On May 29, 2019, Attorney General Healey filed litigation alleging that certain sales and marketing practices, with respect to vapor products, were in violation of Massachusetts law. This was the Attorney General’s first lawsuit “since announcing her office’s investigation into the e-cigarette industry in July 2018.”

The Governor’s press release acknowledges that “Massachusetts has a long history of having a strong tobacco cessation and prevention infrastructure that requires close collaboration between [the Department of Public Health] and local health departments which assist with the enforcement of tobacco control policies at the local level.”

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We will continue to monitor for further developments.

Troutman Sanders: https://www.tobaccolawblog.com/