VAPOR TECHNOLOGY ASSOCIATION FILES LAWSUIT AGAINST
NEW YORK DEPARTMENT OF HEALTH AND PUBLIC HEALTH AND HEALTH PLANNING COUNCIL TO STOP ILL-CONSIDERED FLAVOR BAN
Washington, D.C., September 25, 2019—The Vapor Technology Association (VTA), the industry’s national trade association, Benevolent e-Liquids, Inc., a New York manufacturer, and Perfection Vapes, Inc., a New York retailer, filed a lawsuit seeking declaratory judgment, a temporary restraining order, and a preliminary and permanent injunction in the Supreme Court of the State of New York for Albany County against the New York State Department of Health (NYSDOH) and Public Health and Health Planning Council (PHHPC) to nullify the ban in New York State of flavored vapor products and to prevent it from being enforced.
Tony Abboud, Executive Director of the Vapor Technology Association, said, “Not only will the State’s arbitrary and misguided measure do nothing to address the marketing issues about which the State has complained, it is one of the worst examples of government overreach. Banning flavors for vapor products, while leaving all flavored combustible products on shelves can only entice all users to smoke more. In addition, this action completely ignores the fact that the New York State Department of Health has found that the overwhelming majority of the illnesses it is investigating are directly tied to black market THC products and the presence of Vitamin E acetate in those products, something that the NYSDOH said it did not find in any of the nicotine products it tested.”
Abboud continued, “We share the State’s concerns and stand ready to work with Governor Cuomo, the Department of Health and all interested stakeholders on thoughtful and effective laws and regulations that restrict youth access and do not unfairly advantage combustible cigarettes. There are numerous tools that can be deployed to curb youth vaping that also allow legal and responsible vape small business owners the ability to continue to operate in a regulated market selling to adult consumers who rely on access to these life-changing products.”
The VTA in its filing said that the State’s arbitrary and capricious Emergency Rule crosses the line from “administrative rule-making to legislative policy-making.” It violates the clear separation of powers set forth in the New York constitution. Such executive overreach is underscored by the fact that in its last session, the State Legislature considered, and ultimately did not enact, a flavor ban and instead decided to address concerns about youth vaping by raising the minimum age for vapor products from 18 to 21 — legislation that has not yet even had an opportunity to take effect. The State blatantly ignored the Legislature’s efforts and unilaterally usurped its role in making new policy that will devastate an industry.
Vic Canastraro, owner of Benevolent e-Liquids and Perfection Vapes, said, “We have worked hard to build a business that caters to current and former adult smokers, who are asking us to offer a wide variety of flavored e-liquids to help them successfully transition away from cigarettes. I am deeply concerned about what my customers will do without access to our products.”
The State claims the “concern regarding human exposure to nicotine” is equally applicable to substantially more harmful than combustible cigarettes, yet the Rule places no restrictions on the continued sale of these products, which are also illegally used by youth. The State also failed to consider the significant detriment to public health caused by the Rule and ignored the scientific evidence that shows adult ex-smokers rely on flavored vapor products to break their dependence on combustible cigarettes and are at a significant risk of returning to smoking when flavored vapor products are removed from the market.
Abboud concluded, “The Governor of New York, by edict, is criminalizing lawful retail sales and sending pink slips to the more than 3,100 people who wake up every day to their retail jobs created by the small mom and pop vapor industry. This action could amount to a loss of up to $508 million in wages and benefits, direct economic output of nearly $448 million, and some $130 million in New York state and local taxes. Most concerning, however, is that the tens, if not hundreds of thousands, of New Yorkers who had weaned themselves off combustible cigarettes will return to a habit that is the number one cause of preventable disease and death in the U.S.”
A link to the filing can be found here.
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