Vape Bans Face Legal Challenge in Courts

With all the media attention over the safety of vape products, many states have decided to institute bans on vaping products. While this might seem like a valiant thing for our government to do, it is actually creating turmoil and uncertainty in the vape industry and causing people to turn to alternative sources of vape juice and related products while hurting legitimate local vape sellers and dedicated vape businesses. In reality, most people in states like Massachusetts where a statewide moratorium on all vape related sales has been implemented are simply turning to online or out of state sources to meet their needs. In other places like Rhode Island, where limited bans on items such as flavored vape juice have been implemented, the result is similar. Like any controversial law in the traditional American Spirit, these regulations are coming up against fierce legal battles in the court system as vape businesses try to pick up the pieces and stay alive in a very tilted fight.

Let me start out by highlighting the extreme rarity of vape related sickness and death. Of over 50 million vape users in the United States, approximately 9 have died. Several hundred others claim to be sick in some way due to vape use. Most or all of these incidents are related to the use of tainted dark-market nicotine, CBD or Cannabis/THC vape juice. Through a variety of chemicals and carry over pesticides these vape juices have been made unsafe to be vaped. However, this is a small fraction of the overall vape materials on the market and likewise the number of affected users is extremely low. Consider the number of tobacco, alcohol or prescription drug related sicknesses and deaths that occur each day. From this perspective it is clear that vape use is in fact relatively safe compared to other substitute goods.

Massachusetts Governor Charlie Baker declared a Public Health Emergency recently banning the sale of any and all vape related products in the state. While this may seem at face value to be a heroic act toward vapers, it has had the opposite result. With vape shelves empty at the many thousands of retail providers, consumers are looking elsewhere. Many online stores are willing to risk shipping these items to Massachusetts, including those selling lower quality products. Vapers are seeking out these providers online and through places such as Craig’s List. In this environment consumers are far more likely to get bad vape juice or products without being able to verify their origin. So the law has the opposite effect as it was intended. Furthermore, this ban is driving revenue to nearby states such as Rhode Island which has a restriction on only flavored vape juice. Meanwhile, Massachusetts local vape shops and dealers have effectively been put out of business. As we wind up for the holiday season you can expect this to hurt many local businesses and families, depriving them of much needed and well deserved sales revenue and profit.

Gina Raimondo’s Rhode Island statewide ban on all flavored vape sales has not been much better. The basis of this ban is that flavored vape juices target children. It does not designate flavored vape juices as particularly unsafe and does not address the right and desire of vape users to have pleasant tasting vape juice. It simply bans these flavored juices on the premise that they are directed at children and offers no alternative marketing guidelines to assist vape juice producers in rebranding these items to bring them into compliance while still allowing them to sell their legitimate and highly demanded products. While it has not had the extinguishing effect on businesses that the Massachusetts ban has had, it has still created a similar situation of vape users seeking out alternative sources of vape juice, exposing them to additional risk of getting tainted vape products. It has also restricted local commerce and driven consumers to cross state lines where possible to get their desired products.

These controversial vape bans are meeting strong opposition in the court system. Businesses are banning together to fight back against the arbitrary regulations that are restricting sales, shutting down their stores and stealing their livelihood. Vape users are upset too and are voicing their discontent with the sweeping vape bans. Many of these laws will begin to be put on hold and revisited by the courts to determine if they should be allowed to be implemented. It is likely that many of these bans will be overturned. In order for states to regulate this industry further they will have to craft their restrictions more carefully to ensure that they do not arbitrarily restrict commerce. While most people agree that safety is the top priority, vape laws should not be put into place that make it less safe for consumers to buy and use vape products.


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