Court to Hear Arguments on NYS Flavored E-cigarette Ban

Doctor says nicotine addiction issue won't be resolved even if ban is upheld

Tom Puckett
October 18, 2019 - 4:00 am

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Buffalo, NY (WBEN) Both sides in the argument over a flavored e-cigarette ban in New York will present their cases in court Friday.

Earlier this month, a state appeals court temporarily blocked New York from enforcing Gov. Andrew Cuomo's 90-day emergency ban on such products after the vaping industry sued to block the regulations.

But one doctor says there will not be a resolution to the nicotine addiction problem among teens.

"I think the proponents of the ban will say there's evidence of health harm to people and there should be a ban until there's a final determination from the scientific community," says attorney Paul Cambria. "On the other hand, I think the opponents will say there's no scientific evidence, and this is a major interruption if not destruction of their business without due process."

Cambria says a Michigan court's ruling shutting down a similar ban could be looked at by judges. "Those decisions have advisory value, obviously not jurisdictional value. I think the court's going to be cautious because there are so many people and there is a tremendous amount of property being taken because of this ban," says Cambria. "People in good faith entered into business leases and employment agreements and all of those could be destroyed and I think there will have to be a scientific basis before this could be done. Also, a discussion of whether something less can be done such as warnings, so there's a lot to talk about."

Cambria says there's a possibility the court won't grant the ban, rather expedite a preliminary injuction hearing where evidence can be submitted. "That way a more considered determination could be made, and that's a realistic possibility."

Even if a ban is granted, one area doctor doesn't believe the issue of teen nicotine addiction will be resolved. Dr. Frank Michalski says that's because teens can get their hands on other products. "Whether it's nicotine replacement pouches such as ZYN, or we're seeing the rise of alcohol and smokeless tobacco products, so I'm not sure the ban is going to address the issues of addictions in the manner we're hoping for it to," says Michalski. "They've already developed nicotine replacement pouches and you can find them at gas stations. They are flavored, coffee, mint, spearmint flavored, all their products have already been developed to close in on this market."

Michalski says there's a need to focus on supporting teens and helping them overcoming addiction. "No matter what we ban, they will always find another avenue," says Michalski.

He adds it's important to look at the cause of many vaping-related deaths. He many of them have been related to the THC product from the black market. He also notes New York state is doing a great job on the issue. 

Meanwhile, the governors from several Northeastern states said Thursday they want to work together to regulate marijuana and vaping, including possible regional restrictions on flavored vaping products.

Democratic governors from New York, Connecticut, New Jersey and Pennsylvania met in New York City with health and legislative officials. Representatives from Massachusetts and Colorado were also on hand for the meeting.

"What we want to do is coordinate this on a regional basis," said Connecticut Gov. Ned Lamont, noting how the "patchwork quilt of marijuana regulations makes no sense at all." He said the group came up with "very preliminary" principles concerning how to regulate legalized, recreational marijuana, such as agreeing to have similar policies for THC content, edibles, advertising and taxation in order to dissuade people from turning to the illicit market.

Lamont said "different states are going to have different timeframes" to pass marijuana legislation and he didn't foresee everyone enacting the exact same law at the same time. He said more work needs to be done and staff from the participating states will continue working together on the issue. Several of the governors unsuccessfully pushed for their states to allow recreational pot sales in the last year.

"We just want to make sure we go in with our eyes open and we're consistent," Lamont said.

On vaping, Lamont said there appeared to be "the most unity" among the officials on possibly outlawing flavored e-cigarettes next year, given their appeal to young people and the growing number of vaping-related lung illnesses and deaths across the country.

"I think you'll see some unanimity on that at the start," he said.

In Massachusetts, Republican Gov. Charlie Baker last month announced a statewide ban on the sale of vaping products, a measure that has been challenged in court.

Meanwhile, a new law just took effect in Connecticut that increased the age to 21 for someone to purchase vaping products.

Cuomo said a lack of federal action on pot and vaping regulations means it's up to states to act. He noted that marijuana is often vaped and states should also consider that when considering marijuana legalization.

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