State appellate division delays ban on sale of flavored vaping products

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A ban on vaping products, seen here at a Mineola gas station off Jericho Turnpike, was delayed by the state Appellate Division Thursday. (Photo by Rebecca Klar)

The state Appellate Division issued a temporary delay on a statewide ban on the sale flavored vaping products the day before the ban was to go into effect on Friday. 

Vapor Technology Association, Benevolent ELiquids Inc., and Perfection Vapes appealed a Tuesday decision on their filed lawsuit in which Judge Gerald Connolly of Albany County Supreme Court upheld Gov. Andrew Cuomo’s emergency ban. 

The governor announced the emergency ban on Sept. 17 following a vote by the Public Health and Health Planning Council. On Sept. 24, the council suggested Cuomo include menthol e-cigarette products in the ban. 

The temporary restraining order comes amid an outbreak of vaping-related illness that the Centers for Disease Control and Prevention records has climbed to 1,080 cases across 48 states as of Oct. 1. Statistics also show that their have 18 deaths in 15 states due to the illness. 

While the resolution was to go into effect immediately, the state Department of Health was to provide a two-week grace period for retailers to get into compliance, but Thursday’s ruling will not allow the state to enforce the ban until the court rules on a motion for a preliminary injunction. 

The preliminary injunction allows the status quo to remain in place throughout the course of a lawsuit. 

The vaping industry welcomed the appellate court’s delay that will last at least a week before the preliminary injunction motion is scheduled to be heard Oct. 18.   

“We are very pleased with the New York State Appellate Division’s decision, which acknowledges the strength of our claims about the State’s executive overreach, and which preserves the ability of hundreds of small businesses to remain open and continue to serve their adult customers,” stated Tony Abboud, executive director of the Vapor Technology Association, a trade association.

He said the state Legislature has already addressed concerns of youth vaping by raising the minimum age for vaping products from 18 to 21 and imposing a major tax increase. 

Dr. Howard Zucker, the state health commissioner, contends that the vaping industry is using flavored vaping products to “get young people hooked.” 

While the court’s ruling temporarily delays our scheduled enforcement of this ban, it will not deter us from using every tool at our disposal to address this crisis,” he said. “Make no mistake: this is a public health emergency that demands immediate action to help ensure the wellbeing of our children, and we’re confident that once the court hears our argument they will agree.”

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