Legal efforts by Massachusetts business owners to lift the statewide four-month ban on the sale of e-cigarettes and vape products have shifted to Boston's federal court.
Saugus Attorney Craig Rourke filed a lawsuit on behalf of three Massachusetts vape shops at the U.S. District Court of Massachusetts on Friday. Gov. Charlie Baker, Public Health Commissioner Monica Bharel and Attorney General Maura Healey are named in the suit, in their official roles.
Rourke initially filed a motion in Suffolk Superior Court on Thursday looking for a declaratory judgment seeking injunctive relief, but said he later sharpened his focus on the legal claims.
"It turns out there are some constitutional issues," Rourke said. "Within a 48-hour period last week, I learned more about these products than I ever thought that I'd know, including the fact that the FDA has been regulating them as tobacco since 2016." Rourke argues this alone preempts the governor's action.
In addition, Rourke says the ban "constitutes an improper regulatory taking in violation of the 5th and 14th Amendments."
"All of these are more properly heard over in the federal court," he said.
Rourke predicts the list of plaintiffs will grow. Boston Vapor in Revere and Vick's Vape Shop in Medford have joined Vapor Zone of Danvers, the initial plaintiff, in the lawsuit. Rourke said that on Tuesday, he will meet with a consortium of business owners representing 70 shops.
The stakes are high, Rourke said. "Many of these independent stores have opened up and have been able to sort of fulfill the dream of having their own business, and they're not big enough to sustain a four-month ban."
Gov. Charlie Baker remains committed to the temporary ban. At an unrelated event in Quincy on Monday, Baker told reporters that it was the lack of knowledge from medical experts and federal agencies about what is causing vaping-related illnesses around the country that led him to enact the ban.
"And until we have a better answer on why, we felt the best thing to do was to put in a four month ban," Baker said. "Obviously people have the ability to go to court if they wish to and we’ll continue to make our case associated with the public health issue on this."
