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Federal judge leans toward upholding Massachusetts vaping ban

BOSTON (Reuters) – A federal judge in Boston on Friday said she was “leaning toward” upholding a four-month ban on the sale of vaping products by Governor Charlie Baker, the toughest prohibition yet in a rapidly developing response to e-cigarettes and their potential link to a lung disease.

FILE PHOTO: A man uses a vape device in this illustration picture, September 19, 2019. REUTERS/Adnan Abidi

“I’m leaning toward denying the temporary restraining order” being sought by the vaping industry,” U.S. District Judge Indira Talwani said from the bench, after hearing more than an hour of arguments.

Trade group Vapor Technology Association (VTA) is challenging Baker’s Sept. 24 ban and wants a restraining order to pause the process. Joseph Terry, an attorney for the vaping industry, said the ban is overly broad and suggested it should target “black market products sold by drug dealers.”

The VTA prevailed in a hearing in New York state court on Thursday, when a judge temporarily prevented the state from enforcing a more limited ban, blocking the sale of flavored e-cigarettes, from taking effect. [nL3N26P0V1]

U.S. health officials on Thursday reported that 18 people have died from a mysterious vaping-linked lung illness that has sickened more than 1,000 in the United States. [nL3N26O3M2]

VTA, which sued along with operators of several vape shops in Massachusetts, Connecticut and New Hampshire, said the order amounts to an unconstitutional prohibition on retail and online advertising of their legal products.

Baker announced the ban on sales of e-cigarettes and vaping supplies, both those used for nicotine and THC, the psychoactive ingredient in marijuana, which is legal in the state, in response to the nationwide outbreak in the sometimes deadly lung disease linked to vaping. [nL2N26F1EP]

The U.S. Centers for Disease Control and Prevention provided updated numbers linked to the severe lung condition, saying there are now 1,080 confirmed and probable cases in 48 states and one U.S. territory, along with the 18 deaths. It has said most patients affected reported using products containing THC, but some had used just nicotine or both.

The VTA says Baker’s ban, if left standing, will irreparably destroy Massachusetts’ $331 million nicotine vapor products industry and the livelihoods of the nearly 2,500 workers it employs.

The lawsuit is one of a number filed nationwide by vape shops and the VTA challenging restrictions announced by various states in response to the outbreak of vaping-related illnesses.

Governors in Michigan and Rhode Island have also restricted sales of flavored e-cigarette products in recent weeks. Ohio Governor Mike DeWine on Tuesday called on state lawmakers to pass a ban on most flavored e-cigarettes. [nL2N26M1BQ]

Reporting by Nate Raymond in Boston; Writing by Tim McLaughlin in Boston; Editing by Bernadette Baum and Bill Berkrot

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