State Appellate Court Halts Enforcement of New York's Ban on Flavored E-Cigarette Sales

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State Appellate Court Halts Enforcement of New York's Ban on Flavored E-Cigarette Sales

10/04/2019
An electronic cigarette user

ALBANY, N.Y. — A ruling by the New York Supreme Court, Appellate Division hit the pause button on the state's ban on the sale of flavored vapor products.

The ban went into effect on Sept. 17 and enforcement after a two-week grace period. That period was up on Friday, Oct. 4, as Convenience Store News previously reported, and a 90-day ban on the sale of electronic cigarette and vapor products across the state was set to be enforced.

However, on Oct. 3, the appellate court granted a temporary restraining order against the state in a ruling in a lawsuit filed by the Vapor Technology Association (VTA), New York-based manufacturer Benevolent e-Liquids Inc., and New York retailer Perfection Vapes Inc.

They filed the Sept. 25 legal challenge in Supreme Court of the State of New York for Albany County against the New York State Department of Health (DOH) and Public Health and Health Planning Council (PHHPC) to nullify the state's ban on flavored vapor products and to prevent it from being enforced.

At the time of the filing, VTA Executive Director Tony Abboud called the ban an "arbitrary and misguided measure" that does nothing to address the marketing issues that have drawn complaints from state officials. He also called it "one of the worst examples of government overreach."

The judicial panel is expected to rule on a preliminary injunction at on Oct. 18.

"It is undeniable that the vaping industry is using flavored e-cigarettes to get young people hooked on potentially dangerous and deadly products. 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," said state DOH Commissioner Howard Zucker.

"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," he added.

New York's PHHPC approved the temporary prohibition on the sale of flavored e-cigarettes and vapor products on Sept. 17 after New York Gov. Andrew Cuomo signed an emergency executive action calling for the state to look at banning the sale of flavored vapor products in New York.

The ban does not include menthol vapor products; however, in late September Zucker recommended that the state add menthol to the measure. On Sept. 26, Cuomo accepted the recommendation and directed Zucker to convene an emergency meeting of PHHPC as soon as possible to expand emergency regulations.