ALBANY — A judge struck down New York’s emergency ban on flavored e-cigarettes, in part ruling that Gov. Andrew Cuomo and authorities exceeded their authority in an attempt to curb the teen vaping crisis.
Acting state Supreme Court Justice Catherine Cholakis sided with a vaping trade group that argued the ban was “an impermissible administrative transgression" into lawmaking and policy actions reserved to the Legislature by the State Constitution.
The decision comes after federal regulators recently banned some flavored e-cigarette products across the country, and state lawmakers in New York are racing to pursue legislation to broaden restrictions on sales of vaping products.
Cholakis noted the decision blocking enforcement of the emergency ban, which state health officials initially approved in September at the behest of Cuomo, is separate from the debate over vaping-related health risks.
She wrote nothing in the order "should be read as in any way trivializing the concern that the availability of flavored e-liquids may well be contributing to the spread of nicotine addiction among our youth."
The lengthy court battle stemmed from an outbreak of vaping-related illnesses last year in New York and across the country. Cuomo and several other governors quickly moved to ban flavored e-cigarettes, citing the serious lung injuries and striking increases in teenagers vaping.
Vape shops and the Vapor Technology Association filed the lawsuit challenging New York's emergency ban. They asserted the government overreach would force hundreds of small businesses selling e-cigarettes to close and drive thousands of adult vapers back to smoking combustible cigarettes.
In October, the appeals court in Albany temporarily halted enforcement of the ban just hours before it was to take effect. That ruling sent the lawsuit back to Cholakis, who struck down the ban in the 12-page ruling issued Friday.
The vaping groups and Cholakis also noted nearly all of the vaping illnesses have been linked to marijuana use, as opposed to the e-cigarette devices containing nicotine, court records show.
"As more information becomes available regarding the causes of vaping-related pulmonary disease, informed decisions can be made regarding the ultimate question of whether some or all vaping products should be banned," Cholakis wrote.
What the FDA vaping ban targeted
The Food and Drug Administration this month said that it will ban fruit- and mint-flavored products used in e-cigarettes and vaping products while allowing vape shops to sell flavors from tank-based systems.
The flavoring ban does not apply to menthol and tobacco-flavored products.
Vaping shops won a concession that will temporarily allow them to sell flavors in stores from tank-based systems, which allow people to mix their own nicotine and vaping juice.
U.S. Health and Human Services Secretary Alex Azar said the rule aims to "strike the right public health balance" by targeting products widely used by children while allowing vaping as a "potential off-ramp" for adults who want to quit smoking.
The long-anticipated federal action unfolded amid a sharp rise in teenagers vaping nicotine and THC and a vaping-related lung injury epidemic that has hospitalized 2,561 and led to 55 deaths.
As of Monday, New York has seen 230 vaping-related illnesses and two deaths.
"We will not stand idly by as this crisis among America’s youth grows and evolves, and we will continue monitoring the situation and take further actions as necessary," Azar said.
What's next for New York's vaping ban
Some New York lawmakers and public health and anti-tobacco groups criticized the Trump administration and FDA plan as not going far enough to stem an emerging public health threat.
"After initially proposing a comprehensive ban on dangerous e-cigarette products, the FDA’s final rule fails to regulate many flavored vaping liquids that Big Tobacco uses to lure in a new generation of nicotine addicts," state Sen. Brad Hoylman, D-Manhattan, said in a statement.
"This latest failure from the Trump Administration means New York must step in to fill the gap. We must ban all flavored e-cigarette products, including flavored e-liquids used in tank vaping systems,” he added.
Hoylman has proposed legislation to ban all flavored vaping products that is expected to be debated during the Legislature session that started last week.
How NY emergency e-cigarette flavor ban failed
The judge's order that struck down Cuomo's emergency flavored vaping ban focused on New York's system of checks and balances on political power.
It noted the key Department of Health panel that ultimately approved the ban improperly attempted to establish many new controls on the vaping industry.
"The emergency regulation is less an effort at filling in the blanks left by broad legislation and more an attempt to set a State policy strictly limiting the availability of vaping products in New York," Cholakis wrote.
"This is action reserved constitutionally to the Legislature and not to the executive branch (nor, for that matter, to the judiciary)," she added.
Further, Cholakis repeatedly referenced how the Legislature is trying to address mounting concerns about youth e-cigarette use.
"Of grave concern is the fear that this practice will reverse the hard-won recent trend toward reduced nicotine addiction among our youth," she wrote. "It is widely believed that the vast array of fruit- and candy-flavored e-liquids are at the root of the attraction of vaping to the young."
Cholakis noted a new law approved last year raised the age to purchase tobacco products and e-cigarettes to 21 from 18.
"The Legislature could opt to await the passage of some period of time to gauge whether this legislation is sufficient in itself to stem the increase in vaping among teenagers," she wrote.
Yet lawmakers and health officials have cited the growing ranks of young New Yorkers getting addicted to vaping flavors that mimic candy, desserts and fruits as the reason for the emergency ban and urgent efforts to pass similar legislation.
“Nearly 40% of 12th grade students and 27% of high school students are now using e-cigarettes and this increase is largely driven by flavored e-liquids," Health Commissioner Dr. Howard Zucker said on Sept. 17, citing major spikes in youth e-cigarette use since 2014.
Cuomo's office and the Attorney General's Office, which represented the state in the case, didn't immediately respond to requests for comment on the order.
It effectively blocked the emergency flavor ban by granting a preliminary injunction, citing the likelihood that the state would lose the case.
New York Attorney General Letitia James is also pursuing a lawsuit against industry leader Juul Labs, claiming the San Francisco-based company illegally marketed flavored e-cigarettes to teenagers in New York and across the country.
Juul officials have said the company is "focused on resetting the vapor category in the U.S. and earning the trust of society by working cooperatively with attorneys general, regulators, public health officials and other stakeholders to combat underage use and convert adult smokers from combustible cigarettes.