According to a recent report published within the hour, New York Supreme Court Justice Catherine Cholakis has finally ruled that the statewide flavor ban on nicotine-based vapes cannot move forward.  The ban was initially issued as an executive emergency action by Governor Andrew Cuomo in September shortly after the mainstream media began reporting of a “vaping related” illness sweeping the nation. 

Both the U.S. Centers for Disease Control and Prevention (CDC) and the U.S. Food and Drug Administration (FDA) have confirmed though internal investigations that the true culprit behind the scandal is illegally obtained THC-containing products.  Even in light of these public acknowledgements by federal public health agencies, Cuomo has refused to back down.

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Within days of the September announcement, the Vapor Technology Association (VTA) and two New York vapor companies filed a joint lawsuit opposing the legality of the governor’s executive order. The plaintiffs argued that the statewide flavor ban would unnecessarily harm vape shops while simultaneously threatening the lives of adult former smokers quitting through vaping. 

As the case wound its way through the judicial system, a state appellate court would eventually issue a temporary restraining order on the ban in early October.  The Cuomo Administration continued its fight by taking their case all the way to the New York Supreme Court which now seems to be siding largely with the plaintiffs.

New York ruling might be useful in fighting other state vaping bans

According to The Times Union news organization, the ruling published by Justice Cholakis attempts to walk a fine line between “the devastating impact the emergency order would have on the vaping industry while also acknowledging the real threat that vaping has had on public health.” She also expressed concern for the alleged rise in teen vaping and potential kid-appealing marketing practices of vapor companies like JUUL and others.

“Of course, nothing in this decision, order and judgment 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.  Rather, this court’s holding on the present motion is limited to the recognition that there is a likelihood that petitioners (the vaping industry) will ultimately succeed in proving that the emergency regulation is an impermissible administrative transgression into territory that is reserved to our Legislature by the state Constitution.”

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Cholakis was also careful not to admonish the Cuomo Administration or the state’s Department of Health for issuing the flavor ban in the first place.  She acknowledges that the rise in teen vaping and “vaping-related” illnesses is cause for concern, but the “separation of powers issue” is the primary basis for her ruling in flavor of the plaintiffs.   

Justice Cholakis also makes another very interesting point when she said, “(O)nly a few days ago the minimum age of persons to whom vaping products may legally be sold increased in New York from 18 to 21.” She recommends waiting to see if the new, more restrictive minimum age regulations will have a noteworthy effect on the stemming of teen vaping in New York.

As of the time of this publication, the VTA has issued no public statement on the ruling.   However, Cheryl Smith Richter – Executive Director of the New York State Vapor Association and Co-owner of Rochester’s Cherry Vape – has indeed confirmed the report as true. 

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(Image courtesy of Law.com)