Judge Blocks New York Flavor Ban

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State Supreme Court Justice Rules Flavor Ban Unconstitutional

Recent developments in the US vaping industry have seen a federal prohibition of flavored vapor cartridges, as well as a variety of state and municipal bans throughout the country. Thankfully for vapers in one state, there appears to finally be a bit of relief.

A New York State Supreme Court justice ruled that the state’s Public Health and Health Planning Council overstepped its authority by issuing a ban on flavored vapor products excluding menthol and tobacco. The ban was announced back in September under an emergency order by Governor Cuomo.

Members of the vaping industry and community have hailed the move as a victory for both public health and the economy, allowing current and former adult smokers continued access to a proven smoking cessation product and local vape shops to continue operating. Anti-vaping activists have stated this move is a step backward in the war against vaping, and that this ruling places teens at risk.

A national regulatory crackdown on the vaping industry began in recent months following outbreaks of lung injuries initially attributed to nicotine vaping. Despite the Centers for Disease Control and Prevention determining spiked illicit THC cartridges were ultimately responsible, and finding no evidence that nicotine vaping played a role in any of the outbreaks, lawmakers continue to target the vaping industry consistently.

Bogus Ban Blocked

On January 11th, acting New York state, Supreme Court Justice Catherine Cholakis struck down a temporary ban on the sale of flavored vapor products, excluding menthol and tobacco. The judge granted an injunction, sought by the Vapor Technology Association, that challenged the legality and constitutionality of an emergency order issued by Gov. Andrew Cuomo and the state Department of Health.

In her decision, Cholakis ruled that the state Public Health and Health Planning Council had overstepped its authority by issuing an emergency ban under executive order, stating that regulation of the industry is a job for the state Legislature, and not the executive branch. “The emergency regulation is an impermissible administrative transgression into territory that is reserved to our Legislature by the state Constitution.” she stated.

Cuomo spokesman Kyle Kotary called the judge’s decision “unfortunate,” but stated the administration was poised to continue addressing the topic of vaping. “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,” he told reporters.

The Vapor Technology Association, and two member businesses, sought the injunction under the argument that the Department of Health had exceeded its authority by issuing the ban, and that the ban would be detrimental to the state economy by forcing local shops to shutter.

Facts About Vaping

Since their initial proposals, harm reduction experts and public health scholars have cautioned against flavor bans, noting they could deter current smokers from quitting and may turn former smokers back to cigarettes. A study from Yale University found that flavor bans result in limited options for e-cigarettes and an increased offering among cigarettes, which could deter smokers from quitting and turn quitters back into smokers.

There is an extensive collection of research noting the efficacy of vaping in smoking cessation. Research from the University of Louisville found that vaping was the most effective form of smoking cessation, even more than quitting cold-turkey.

In addition to being useful in aiding smoking cessation, study after study continues to demonstrate the reduced-harm vaping poses compared to smoking. In fact, research from the Roswell Park Comprehensive Cancer Center found that vaping was actually 93% safer than smoking.

Furthermore, current data shows that there is little to no risk of harm from long-term vaping. In a study published by the National Academy of Sciences, researchers found that vaping is not only less harmful than smoking, but there are no long-term health effects associated with its long-term use.

Conclusions

Judge Cholakis’ ruling has been seen as a boon for New York state’s vaping industry and community, who have been scrambling to adjust since the announcement of the ban back in September. Local vape shops have hailed the move as an economic windfall, allowing the industry to continue to thrive for the time being.

However, things aren’t in the clear for vapers in the state, as Gov. Cuomo has proposed official legislation to ban flavored vapor products as part of his 2020 initiatives. In addition, the state Department of Health still has the opportunity to file an appeal challenging the injunction.

Members of the vaping industry and community must remain vigilant in fighting back in the war against vaping. The future of public health and the state’s industry are in jeopardy, and only a campaign of sustained civic engagement and informative civil discourse may properly help to shift public and legislative opinion.

What are your thoughts on the blocking of New York’s flavor ban? What do you believe the implications will be for vapers and vape shops throughout the state? We’d love to hear from you in the comments below, be sure to like us on Facebook and follow us on Twitter to receive all the latest vaping news!

(Image Credit – Pixabay – https://pixabay.com/images/id-381233/)

Jimmy, lover, blogger, vaper and ex-smoker. I’ve been blogging about and supporting Vaping since 2009. They changed my life and I think history will show them as one of the most significant public health invention of the 21st century.

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