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Judge says decision on Baker vaping ban expected Monday

Judge Douglas Wilkins said he expects to decide by Monday whether to declare Gov. Charlie Baker’s four-month ban on vaping products unlawful.

At a hearing on the matter Friday in Suffolk County Superior Court, even Massachusetts Public Health Commissioner Monica Bharel appeared unsure of the need for Baker’s drastic action when she appeared to contradict herself by agreeing with an attorney for the electronic cigarette industry that vaping among youngsters was not a public health emergency.

“You agree with me that as of Sept. 24, 2019, the youth vaping epidemic was not an emergency; it was a long-term issue,” said Joseph Terry, the attorney for the Vapor Technology Association, Ian Devine and Devine Enterprise Inc., who are trying to block the ban Gov. Charlie Baker ordered on retail sales of e-cigarette, or vaping, products on that date.

Bharel did not disagree, even after saying earlier, “I have called it a public health epidemic.”

When cases started to appear this summer, she said, “I became extremely concerned that we were addicting another generation to nicotine products.”

As of Oct. 15, 1,479 lung-injury cases and 33 deaths, including one in Massachusetts, associated with the use of vaping products have been reported to the Centers for Disease Control and Prevention in the U.S. alone.

Bharel testified that the four-month ban gives scientists time to try to determine what the cause of the illness is.

But Dr. Michael Siegel, a professor at the Boston University School of Public Health, said the ban will only drive ex-smokers back to cigarettes and fuel sales of black-market pot cartridges for electronic cigarette, or vaping, products.

Siegel, who told the Herald he is not being paid by the e-cigarette industry, said he believes the “overwhelming majority” of deaths and illnesses that have been reported are due to vaping not nicotine but THC, the intoxicating compound in marijuana.

But Bharel noted that the Hampshire County woman who died used nicotine e-cigarettes.

The Vapor Technology Association, Ian Devine and Devine Enterprise Inc. asked Wilkins to declare the ban unlawful, arguing that it will “irreparably destroy Massachusetts’ $331 million nicotine-vapor-products industry and the livelihoods of the 2,500 workers that it employs,” according to their complaint.

The plaintiffs argue that the ban makes no distinction between vaping products that contain THC and ones that contain “only” nicotine, such as those sold by Devine Enterprise Inc. and other Vapor Technology Association members.

“Similarly, it makes no distinction between the black-market vaping products at the center of that outbreak, and the … (Food and Drug Administration)-regulated products produced by legitimate manufacturers,” according to the complaint. “And while purporting to be motivated in part by underage use of vaping products, the Emergency Order contains no provisions expressly directed at minors.”