A state Supreme Court justice has struck down New York's ban on the sale of certain flavored electronic liquids, granting an injunction sought by the vaping industry that challenged the legality and constitutionality of an emergency order issued last year by Gov. Andrew M. Cuomo and the state Health Department.
The ban was issued in September by the state Department of Health's Public Health and Health Planning Council, a day after Cuomo signed an executive order to ban the sale of flavored e-cigarettes and related products. The swift action, which the vaping industry said would cripple its more than billion-dollar-a-year industry in New York, followed an outbreak of vaping-related illnesses and deaths across the country.
The decision by acting state Supreme Court Justice Catherine Cholakis noted the devastating impact the emergency order would have on the vaping industry while also acknowledging the real threat that vaping has had on public health, including luring more youth to use nicotine products after decades of anti-smoking campaigns had helped lower cigarette use.
But Cholakis found that the state had overstepped its authority and that the regulation of the vaping industry and flavored e-cigarettes in particular should be handled by the Legislature.
"Of course, nothing in this decision, order and judgment should be read as in any way trivializing the concern that the availability of flavored e-liquids may well be contributing to the spread of nicotine addiction among our youth," Cholakis wrote. "Rather, this court's holding on the present motion is limited to the recognition that there is a likelihood that petitioners (the vaping industry) will ultimately succeed in proving that the emergency regulation is an impermissible administrative transgression into territory that is reserved to our Legislature by the state Constitution."
The state's emergency regulation effectively was an effort by Cuomo's administration to use state policymaking to limit the availability of vaping products in New York, but the judge found that type of action is "reserved constitutionally to the Legislature and not to the executive branch." She noted that the policy was also not the product of any biomedical research.
Following Cuomo's executive order, the health council bypassed public notice and public comment periods normally used for regulatory action and issued their directive in a hastened procedure of emergency rulemaking.
The ruling noted that it remains unclear whether vaping industry would succeed in challenging the state's blanket ban as it relates to any health crisis, but found the separation of powers issue had trumped that. Still, her ruling acknowledged it is "not nearly so clear" that the health council had been out of line when it opted to use the emergency regulation procedure to ban the products.
"The spate of illnesses and deaths attributable to pulmonary disease brought on by vaping has only recently come into public consciousness, though vaping has existed in its current form for more than a decade," Cholakis wrote. "And the significant rise in teenage use of vaping materials has only recently reached the point where, according to (the Health Department's) evidence, one in four high school students has engaged in the activity."
The vaping industry, which sought an injunction keeping the state from enforcing the order and declaring it unconstitutional, had argued that losing the case would have resulted in the shuttering of many of their businesses across the state.
The judge said the Legislature can step in and still take steps to regulate the industry.
"(O)nly a few days ago the minimum age of persons to whom vaping products may legally be sold increased in New York from 18 to 21," the judge wrote. "The Legislature could opt to await the passage of some period of time to gauge whether this legislation is sufficient in itself to stem the increase in vaping among teenagers."
State health officials have said they believe eliminating flavored vaping products would help curb the extremely high usage among youth.
The case was filed against the state by the Vapor Technology Association, which has roughly 800 members, and two of its affiliates. They argued the Health Department exceeded its authority in enacting a ban that state legislators had already considered during last year's legislative session. But the session had also ended before the mysterious vaping illnesses began surfacing.
At least 52 people are known to have died from the illness and 2,409 others have experienced serious respiratory issues that state and federal health investigators have linked to vaping. Two of those deaths have occurred in New York. Vaping advocates countered that many of the cases were associated with black-market THC products.