July 9, 2020

Volume X, Number 191

July 09, 2020

Subscribe to Latest Legal News and Analysis

July 08, 2020

Subscribe to Latest Legal News and Analysis

July 07, 2020

Subscribe to Latest Legal News and Analysis

July 06, 2020

Subscribe to Latest Legal News and Analysis

Massachusetts Vaping Witch Hunt Continues…

The fight over the ban on vaping products in the Commonwealth of Massachusetts continues with as much passion and tenacity as the national dislike of the New England Patriots. Less than one week after the Court issued an order instructing the Commonwealth to comply with the law, the Commonwealth fumbles again. The Commonwealth’s second emergency regulation, titled “Severe Lung Disease Associates with Vaping Products,” 105 CMR 801.000 et seq., filed on October 28, 2019, basically mirrors the first emergency regulation and ignores the admonishments of Judge Wilkins.

The Governor’s action sent the vaping and cannabis industries back to court challenging the lack of evidence in the order filed by the Commonwealth, which vaporizes small businesses, adult choices, and the ability of those suffering with chronic illnesses to reduce or alleviate their pain.

In support of its action, which the Commonwealth estimates will have an economic impact of more than $8 million, the Commonwealth appears to be relying largely on newspaper articles regarding reported cases of illness linked to vaping products as well as information from the Massachusetts Department of Public Health (DPH), an institution that in its own words has limited resources and is unqualified and unable to perform a scientific analysis to determine the cause of the lung illnesses. The DPH relies on information supplied through questions presented to the individuals with the illness as to what they consumed leading up to their illness. However, the DPH does not have the ability to make the scientific determination as to what is the most likely cause of the illness, assuming there is any. Such unreliable data clearly bothered Judge Wilkins who said: “The record includes no verified or confirmed data about exclusive nicotine use. At a minimum, the credibility of the self-reports on that issue is seriously in question and may be unreliable for purposes of banning an entire industry.”

Despite the cannabis regulations in Massachusetts, which are particularly stringent due to the requirement that every cannabis product is tested by a state-approved lab, the Commonwealth quickly abandoned the cannabis industry, which heavily relies on sales of vaping products, after boasting that its oversight promotes public safety (as well as provides the state with substantial tax revenue). Now, in keeping up with its past reputation for witch hunts, the Commonwealth is ignoring logic and the public good by passing a ban even where the scientific data does not show that legal vaping products are the cause of illness and where the legal cannabis products are tested diligently and approved by the state-certified specialty labs before being put on the market.

One has to question: If the Commonwealth is willing to shut down an entire industry and ignore the pain of those who rely on vaping products to relieve their suffering over concern for 46 potential cases of vaping illness overwhelmingly linked to illicit THC, why is the Commonwealth ignoring its much larger, ongoing epidemics in using the emergency regulation tool? If the Commonwealth applied consistent policy, we should for example expect an emergency regulation prohibiting the sale of alcohol in the Commonwealth. It is a well-documented fact that one of the largest of the “emergencies” facing both teens and adults in Massachusetts is alcohol.

According to the Centers for Disease Control and Prevention (CDC) Youth Risk Behavior Surveillance System (YRBSS), 31.4% of these teens currently drink alcohol and 15.9% reported binge drinking; 14.4% rode with a driver who had been drinking alcohol. Even the student newspaper at Boston University acknowledged Massachusetts’s poor ranking for drunk driving, which causes more deaths in Massachusetts annually than all combined “vaping” allegations. However, no executive orders or emergency regulations have been proposed or issued related to alcohol, which is statistically more harmful to both teens and adults in Massachusetts.

The Commonwealth is void of any focus on the more life-threatening issues facing Massachusetts, such as 2,168 drug overdose deaths annually. This should concern Governor Baker because 20.1% of Massachusetts teens were offered, sold or given an illegal drug on school property. Not to mention injuries, which is the leading cause of death among Massachusetts residents aged 1−44 years. That means 10 people die from injuries per day in Massachusetts compared with the 46 cases of vaping-related illness reported since June. In fact, mosquitoes present a more pressing and serious health emergency than vaping. However, for some reason Governor Baker is determined that a vaping ban is a public emergency worthy of tax dollars and resources even after Judge Wilkins told the Commonwealth that ongoing epidemics were not emergencies.

Isn’t it time that the Commonwealth of Massachusetts stopped its witch hunt?

© 2020 Wilson ElserNational Law Review, Volume IX, Number 304


About this Author

Tori Levine, Wilson Elser Moskowitz, manufacturers legal counsel, product liability attorney, mass tort lawyer, insurance defense litigation, expert witness selection

Tori Levine is a trial attorney with an innate ability to balance courtroom ingenuity with the practical needs of business clients in a variety of scenarios. She has significant experience in product liability, mass tort, insurance defense and commercial litigation matters that have arisen in Texas, Arkansas, Oklahoma and other states.

In her product liability practice, Tori has defended manufacturers, suppliers and distributors of a wide variety of products, component parts and raw materials. She also has dealt with toxic tort cases involving...

Beata Shapiro Partner Boston Art Law Class Action Defense Italy Product Liability, Prevention & Government Compliance Railroad

Beata Shapiro has extensive experience working with insurance and transportation companies, including public and private carriers, shippers and intermediaries, on defense of claims for personal injury, wrongful death, property damage, product liability, environmental claims, and claims for freight shortage, theft, and damage. In addition, she has represented numerous entities in suits to recoup for property damages, including cargo damages, and freight charge disputes. Beata also helps clients with preparation of shipping and shipping logistics contracts, employment guidelines, document retention policies, and with regulatory compliance and has represented clients in administrative proceedings resulting from federal and state agency fines.  Beata has also worked with numerous clients on emergency response and product recall, including interfacing with government agencies, experts, and adjusters with investigation and evidence gathering, managing environmental clean-ups and assessments, and preparing public statements on behalf of the client.

Beata brings to her cases a wealth of talent and experience gained from diverse ventures, including study of economics and business in Italy and France, clerking for a Massachusetts state court judge, and assisting institutional and private high-value investors with investments in stocks, bonds, mutual funds and non-traditional investment vehicles while working for an international investment corporation. She served as a legislative aide in the office of a Massachusetts state senator, where she researched and drafted legislation in areas such as stem cell research, child protection, consumer safety, taxation, insurance and constitutional law. Beata was also a legal intern at the Overseas Private Investment Corporation in Washington, DC, a federal agency providing financing and insurance for high-risk foreign investment, where she researched and analyzed domestic and international law, including provisions of bilateral and regional trade agreements, such as NAFTA, and assisted with real estate closings and commercial finance and political risk insurance claims in Latin America and Eastern Europe. As an attorney, she has also worked extensively with domestic banks and investors in commercial and residential real estate transactions.