By Angela Underwood
To be or not be Gov. Andrew Cuomo’s Vape Ban, that is still the question.
New York Gov. Andrew Cuomo banned the sale of flavored e-cigarettes vaping in the Empire State in mid-September and almost immediately after the Vapor Technology Association (VTA) filed a lawsuit against the New York State Department of Health (NYSDOH) and Public Health and Health Planning Council (PHHPC) seeking declaratory judgment, a temporary restraining order, and a preliminary and permanent injunction.
It worked, leaving the Supreme Court Appellate Division to decide the fate of Gov. Andrew Cuomo’s Vape Ban, with a judge expected to hear arguments from both parties today. But even before the cases got heard today, Tony Abboud, executive director of the Vapor Technology Association, made one thing clear—VTA is fighting the ban no matter what.
“We will be litigating every action of this kind,” Abboud said to the New York Daily Weed Report. “We are committed to ensuring access for the 10 million adult consumers who rely on alternative products to quit smoking cigarettes.”
When contacted for comment, the NYSDOH stated “due to pending litigation, the Department cannot comment beyond Dr. Howard Zucker’s statement on October 3rd.
“Make no mistake: this is a public health emergency that demands immediate action to help ensure the wellbeing of our children, and we’re confident that once the court hears our argument they will agree,” Dr. Zucker said.
While the NYSDOH and the VTA disagree, so do Katharine Van Tassel, a law professor at Case Western Reserve University, who has her Masters of Public Health in Law and Public Health Policy from Harvard University, and Noah Potter, attorney with the international cannabis-business firm Hoban Law Group in New York City
Van Tassel said it is not surprising states are initiating short-term, e-cigarette vaping bans in reaction to the news of a stunning growth in the number of children who are using e-cigarettes to vape nicotine.
“These children have no idea that they are being lured into a lifetime of nicotine addiction by harmless-sounding flavors such as bubble-gum and cotton candy,” Tassel said. “These state bans are temporary gap-fillers that state departments of public health feel are needed for a time period of anywhere between one to approximately eight months until the FDA can act.”
According to the Tassel, in May of 2020, the current, more nuanced and measured FDA regulations of all e-cigarettes kick-in. In the meanwhile, the fight between New York State and the VTA is par for the course.
“They are both working hard to represent their constituents,” Tassel said. “Governor Cuomo is responding to the outcry from parents whose children are being lured into a lifetime of nicotine addiction by flavors such as bubble-gum and cotton candy, and Tony Abboud is representing all of the small business owners who sell these products whose livelihood is being threatened by a vaping ban.”
Potter said on the face, the rules proposed in the vape ban really have nothing to do with the injuries being reported.
“The use of vaping injuries is a pretext for taking this action; be very clear about that,” Potter said, adding in the scope of the regulation, it is suspect that New York would take such a major step with the ban, which arguably should have gone through the legislature.
“It’s also somewhat ironic that the ban applies to the flavored e-liquids as opposed to combustible forms of ingestion,” he added.
Potter pointed out that the New York Department of Health and Mental Hygiene placed posters around the subway urging people not to smoke menthol cigarettes.
“Now the Department of Health is trying to do their big proposed, out-and-out ban on menthol flavored e-liquid, where initially it was tobacco flavored and menthol flavored were the only forms of liquid available, and two days later they propose a ban on menthol as well,” he said.
One thing Potter and Van Tassel do agree on is minors not purchasing anything that can harm their health.
“The regs are quite clear about stopping access by minors to purchase flavored nicotine products,” Potter said. “That is something the states wanted to do forever; they have stated in the past they have envisioned a tobacco free future.”
Lastly, Potter pointed out the paradox.
“We have this ironic situation in which cannabis legalization is moving forward during an attempt to enact tobacco prohibition,” he said.
Van Tassel said it is the lack of the ability to track and trace the ingredients in nicotine vapes and THC vapes caused by a lack of regulation that is severally handicapping the FDA and CDC’s current efforts to quickly identify the contaminant that is causing vaping injuries.
“The long-awaited FDA regulations of the e-cigarette industry that come into effect in May of 2020 will require ingredient labeling and will work to ensure that the supply chain for these products includes only safe ingredients,” she said.
Until then, the temporary ban in the Empire State remains until a New York Supreme Court Appellate Division judge says it doesn’t.