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Appeals court blocks state from banning flavored e-cigarettes - for now

The matter now goes back to a Supreme

The matter now goes back to a Supreme Court judge in Albany County, who will weigh the request for a temporary injunction Photo Credit: AP/Robert F. Bukaty

ALBANY — New York’s proposed ban on flavored vaping products won’t take effect Friday after a court issued a temporary restraining order Thursday.

The Appellate Division, New York’s midlevel appeals court, granted a stay requested by an e-cigarette industry group. The order prevents the ban from taking effect until a lower court can review the industry’s request for temporary injunction.

In a short, 4-0 decision, the Appellate Division said the Cuomo administration is “temporarily enjoined and prevented from enforcing” a prohibition on flavored electronic cigarettes. The New York Law Journal first reported the court order.

The matter now goes back to a Supreme Court judge in Albany County, who will weigh the request for a temporary injunction; the next hearing is set for Oct. 18.

Gov. Andrew M. Cuomo called for a ban earlier this year, calling vaping a dangerous and addictive habit. A policymaking board, the Public Health and Health Planning Council, approved the ban on Sept. 17 — positioning New York to become the first state to ban flavored e-cigarettes.

Michigan also has moved to outlaw the products; its ban is slated to take effect later this month.

Cuomo’s health commissioner vowed to continue the legal fight.

“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,” Health Commissioner Dr. Howard Zucker said in a statement. “Make no mistake: This is a public health emergency that demands immediate action to help ensure the well-being of our children, and we’re confident that once the court hears our argument they will agree.”

The group that sued, the Vapor Technology Association, cheered the ruling and said it underscores the state’s “overreach.”

“We are very pleased with the New York State Appellate Division’s decision, which acknowledges the strength of our claims about the State’s executive overreach, and which preserves the ability of hundreds of small businesses to remain open and continue to serve their adult customers,” Tony Abboud, executive director of the vaping group, said in a statement. The group has said flavored alternatives can help adults quit smoking.

Earlier this year, Cuomo and state legislators approved a law to raise the legal age for buying e-cigarettes from 18 to 21. That law takes effect Nov. 13.

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