Do you Vape Bro?: The Vaping Crisis and State Judiciaries Response to State Bans

*Christian Coward

I.  Introduction

Tobacco has vast social, political, and economic influence in the United States.  See History of Tobacco, Tobacco Free Life, https://tobaccofreelife.org/tobacco/tobacco-history (last visited Mar. 5, 2020).  In the early twentieth century, smoking cigarettes became a paramount part of American culture post World War I.  Id.; see Livia Gershon, A Brief History of Tobacco in America, JSTOR Daily (June 10, 2016), https://daily.jstor.org/a-brief-history-of-tobacco-in-america/.  This trend occurred due to heavy advertising and the inclusion of cigarettes in soldiers’ rations during both world wars.  Id.  Total annual cigarette consumption for individual smoking adults grew from 54 cigarettes in 1900 to 4,345 in 1963.  Id.  The second half of the twentieth century was a different story.  See K. Michael Cummings & Robert N. Proctor, The Changing Public Image of Smoking in the United States: 1964–2014, 23 Am. Ass’n for Cancer Res. 32, 33 (2014).  The social acceptance of cigarette smoking began to decline after the Surgeon General’s Advisory Committee released a report in 1964, which confirmed the negative health risks associated with smoking.  See id.; see Then and Now: 50 Years Since Cigarettes Linked to Cancer, ABC, https://www.abc.net.au/news/2014-01-11/smoking-then-and-now/5194104 (last updated Jan. 10, 2014, 7:13 PM).

This growth in negative social perception of cigarette smoking opened the door for alternative methods of nicotine consumption to develop popularity.  Electronic cigarettes (e-cigarettes) appeared in the United States for the first time in 2006.  See A Historical Timeline of Electronic Cigarettes, CASSA, http://www.casaa.org/historical-timeline-of-electronic-cigarettes/ (last visited Mar. 5, 2020).  Vaping has become a popular trend that followed a surge in consumer usage, similar to the prevalence of cigarettes in the early twentieth century.  See Christina Matthews, Vaping – A Journey Through Its History, Vaping Daily, https://vapingdaily.com/what-is-vaping/vaping-history/ (last updated Apr. 5, 2019).  This popular trend was soon followed by an outbreak of vaping-related deaths and lung injuries.  See Outbreak of Lung Injury Associated with E-Cigarette Use, or Vaping, CDC, https://www.cdc.gov/tobacco/basic_information/e-cigarettes/severe-lung-disease.html (last updated Feb. 25, 2020, 1:00 PM); see Angelica LaVito, Vaping Illness Deaths Climb to 33 as Outbreak Spreads and Doctors Worry Flu Season Could Make It Worse, CNBC, https://www.cnbc.com/2019/10/17/vaping-illness-deaths-climb-to-33-as-outbreak-spreads-and-doctors-worry-flu-season-could-make-it-worse.html (last updated Oct. 17, 2019, 6:44 PM) (“The CDC is calling the illness EVALI, short for e-cigarette, or vaping, product use associated lung injury.”).

In response to the flavored vaping-related deaths and the increased use of vaping devices among youths, several states placed emergency bans on flavored vaping products.  See Jamie Ducharme, As the Number of Vaping-Related Deaths Climbs, These States Have Implemented E-Cigarette Bans, Time, https://time.com/5685936/state-vaping-bans/ (last updated Oct. 15, 2019, 4:28 PM); see Alex Norcia, A Running List of US Cities and States Where Vapes Are Banned, Vice (Oct. 15, 2019, 12:47 PM), https://www.vice.com/en_us/article/9keg7v/where-are-vapes-banned-rhode-island-michigan-washington-oregon-massachusetts-vape-laws-2019.  Moreover, the Trump Administration has issued a federal ban of flavored vaping products.  See, e.g., Jamie Ducharme, Trump Administration Announces Stripped-Down Regulations on Flavored Vaping Products, Time, https://time.com/5758004/flavored-vape-ban/ (last updated Jan. 2, 2020, 6:28 PM).

In response to the bans on flavored vaping products, businesses selling these products have successfully obtained temporary relief through their respective state judiciaries.  See Sam Stites, Court Overturns Temporary Vape Ban, Mail Trib. (Oct. 17, 2019), https://mailtribune.com/news/state-news/court-overturns-temporary-vape-ban (“The Oregon Court of Appeals on Thursday granted a temporary stay on Oregon Health Authority rules enforcing a 180-day ban on the sale of flavored nicotine and medical marijuana vaping products.”); see Melanie Grayce West, Court Temporarily Halts New York’s Ban on Sale of Flavored E-Cigarettes, Wall Street J., https://www.wsj.com/articles/court-temporarily-halts-new-yorks-ban-on-sale-of-flavored-e-cigarettes-11570138950 (last updated Oct. 3, 2019, 6:12 PM) (“Judges granted a temporary restraining order Thursday that stops the state from enforcing a ban set to begin Oct. 4.  They are expected to rule on a preliminary injunction at an Oct. 18 court date.”); see Edward O’Brien, Judge Grants Injunction on Governor’s Vape Ban, Mont. Pub. Radio (Oct. 18, 2019), https://www.mtpr.org/post/judge-grants-injunction-governors-vape-ban; see Kathleen Gray, Judge Temporarily Halts Flavored Vape Ban in Michigan, Cites Harm to Businesses, Detroit Free Press, https://www.freep.com/story/news/politics/2019/10/15/michigan-vape-ban-update-news/3987809002/ (last updated Oct. 16, 2019, 6:27 AM).

II.  Priority for Businesses Against Public Health?

Courts are forced to weigh the prospective harm to vaping businesses against state interests in protecting public health; particularly, in the case of the health of young people using flavored vaping products.  See Sarah Rense, 7 States Have Moved to Ban Vapes.  Is the Rest of America Next?, Esquire (Oct. 14, 2019), https://www.esquire.com/lifestyle/health/a29067489/which-states-banned-flavored-e-cigarettes-vaping-juuls/; see Gray, supra; see Outbreak of Lung Injury Associated with E-Cigarette Use, or Vaping, supra.  Businesses challenging the bans on flavored vaping products argue that: (1) the deaths and illness associated from vaping are caused by black market THC products; (2) the bans would immediately cause, or have already caused, their businesses to suffer irreparable financial harm; (3) the bans will force adult users of vape products to revert back to smoking cigarettes; and (4) there is insufficient evidence to support the declaration of a state emergency that would allow a state to override normal legislative processes.  See Gray, supra; see Stites, supra; see Laurie McGinley et al., The Vaping Industry Has Close Ties to Trump.  His Ban Still Caught Them Off Guard., Wash. Post (Sept. 17, 2019, 10:00 PM), https://www.washingtonpost.com/health/the-vaping-industry-has-close-ties-to-trump-his-ban-still-caught-them-off-guard/2019/09/17/0423c994-d8c0-11e9-ac63-3016711543fe_story.html.      The states that banned flavored vaping products did so based on information and statistics reported by the Centers for Disease Control and Prevention (CDC) and state-level medical agencies:

As of October 15, 2019, 1,479 lung injury cases associated with the use of e-cigarette, or vaping, products have been reported to CDC from 49 states (all except Alaska), the District of Columbia, and 1 U.S. territory. Thirty-three deaths have been confirmed in 24 states . . . .  Since the specific causes or causes of lung injury are not yet known, the only way to assure that you are not at risk while the investigation continues is to consider refraining from use of all e-cigarette, or vaping, products . . . .

See Norcia, supra; see Outbreak of Lung Injury Associated with E-Cigarette Use, or Vaping, supra.

State judiciaries’ decisions imply that the health risks associated with the youth vaping crisis are currently not substantiated enough to justify the irreparable harm that e-cigarette companies will face.  See, e.g., Gray, supra (“‘Not only has plaintiff A Clean Cigarette lost a significant percentage of its sales and closed several stores due to the ban, the ban will force plaintiff to rebrand itself entirely,’. . . .  ‘In essence, the emergency rules will destroy plaintiff A Clean Cigarette’s business as it currently exists.’”); see supra Part I.  The CDC has acknowledged that it has not yet identified specific causes of harm related to using e-cigarettes.  See Outbreak of Lung Injury Associated with E-Cigarette Use, or Vaping, supra.  Although young e-cigarette users may face serious medical risks, the judiciaries will likely be unable to uphold emergency state bans if the evidence does not indicate that mainstream flavored e-cigarette products are a direct cause of EVALI.  See, e.g., O’Brien, supra.  With the likelihood of states appealing the potential for federal intervention, it remains unclear whether e-cigarette companies are safe from government regulation.  See Gray, supra; see McGinley et al., supra.

III.  Conclusion

The culture of smoking cigarettes had an immense rise and fall in the twentieth century, and now, it seems that the culture of vaping is following the same trajectory.  See supra Parts I–II.  The CDC will continue to research vaping products and the associated lung injuries caused by these products.  See Outbreak of Lung Injury Associated with E-Cigarette Use, or Vaping, supra.  Future findings will determine how the courts rule on existing and future state regulation of e-cigarette products, as the risks associated with vaping become more apparent over time.  See id.  Furthermore, current federal regulation will likely shift future litigation to the federal judiciary.  Nevertheless, the future of vaping is clouded and will likely be determined in our nation’s highest Court.

*Christian Coward is a second-year day student at the University of Baltimore School of Law, where he is a staff editor for the Law Review and a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society. Christian is a judicial intern for the Honorable George L. Russell III in U.S. District Court of Maryland and a research assistant for Professor Cassandra Havard. He spent this past summer working as a law clerk at Silverman|Thompson|Slutkin|White LLC , and was the Law Scholar for Professor Hugh McClean’s criminal law class this past fall. This summer, he will join Venable LLP as a summer associate.

 

 

 

 

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