October 24, 2019

Lawsuit Alleges Ban on Flavored Vape Products Exceeds Board’s Statutory Authority

On October 21, a national non-profit industry trade association and a vape shop filed a complaint against Washington State to stop the ban on flavored vapor products. Plaintiffs, Vapor Technology Association and Baron Enterprises LLC, want an emergency rule banning vaping products in the state of Washington to be held invalid.  In early October, the Washington State Department of Health and Washington State Board of Health imposed an emergency ban on the sale, purchase, and advertisement of flavored vapor products until February 7, 2020.  The plaintiffs allege that the emergency ruling would destroy Washington’s nicotine vapor-products industry, which brings approximately $484 million a year in revenue to the state. The industry also employs at least 3,400 individuals throughout the state.  The plaintiffs argue that the emergency rule exceeds the board's statutory authority, is arbitrary and capricious, and violates free speech guarantees because the state fails to establish a distinction between products containing THC and products with nicotine.  Finally, the plaintiffs contend that the ban would cause a public health crisis, as customers would turn to the black market or return to smoking traditional tobacco products.