Massachusetts DPH Admits that Rescinding the E-Cigarette Sales Ban "Will Almost Certainly Lead to More Cases of Severe Illness, and Potentially Deaths"

In court filings--both in state and federal court--the Massachusetts Department of Public Health strongly argued that allowing e-cigarettes to be sold in the Commonwealth, as it did by rescinding the emergency sales ban on December 11, will almost certainly lead to more cases of severe respiratory illness and possibly death.

According to statements by both the governor and the Department of Public Health on December 11, the cause of the respiratory disease outbreak remains unknown and officials have not yet been able to pinpoint the specific source of the vaping-related illnesses. Therefore, according to the Department of Public Health's statement before a federal judge:

"Until state and federal public health officials are able to pinpoint the specific source of the rapidly growing number of vaping-related illnesses, the continued sale of vaping products in Massachusetts will almost certainly lead to more cases of severe illness, and potentially deaths, among our residents. The Emergency Order is intended to prevent that tragic outcome." 

Well, DPH has now rescinded the emergency order and is allowing the continued sale of vaping products in Massachusetts. By its own argument, this will "almost certainly lead to more cases of severe illness, and potentially deaths, among Massachusetts residents." The Department of Public Health is no longer trying to prevent "that tragic outcome."

Also in court filings, the state argued that until the cause of the outbreak is known, the reality is that people are becoming seriously ill and dying, which underscores the serious risks at stake at the current time:

"vaping is at the center of public concern about serious illness, and event death, that has been linked to vaping. The linkage is, as yet, poorly understood and disputed. But the reality of people becoming seriously ill, and in some cases dying, after using certain vaping products, underscores the serious risks at stake while medical professionals unravel the mysteries."

The state has made strong arguments that it is not just THC vape cartridges that are causing the outbreak, but also nicotine-containing products. According to Department of Public Health Court filings:

"One person in Massachusetts—a woman in her 60s from Hampshire County who had vaped nicotine products—has died from the illness." 

"The Governor’s declaration determined that it is "necessary for DPH to take action immediately to address this public health emergency” of “severe lung disease associated with the use of vaping products.” Noting the explosion of reported cases nationwide and in Massachusetts, the declaration stressed that “the specific cause of this disease is unknown,” but that all cases “have a history of vaping and have indicated a history of using vaping products containing [THC], nicotine, or a combination of THC and nicotine.” "the data has shown that the majority of victims reported using nicotine and THC products; 13-17% of victims reported using only nicotine products; and 32-37% of victims reported using only THC products. The Emergency Order applies to nicotine and THC products because a significant percentage of victims used only nicotine products... ." 

"the most recent CDC data reflects that a significant percentage of affected patients vaped nicotine and THC products (41%) or nicotine products alone (16%), and it remains unknown how many cases of the illness are attributable to sales of vaping products in stores." [N.B. Updated CDC data show that 13% of affected patients reported vaping nicotine alone]

Furthermore, the most recent data reported by DPH shows that 32% (nearly one-third) of confirmed and probable case patients in Massachusetts reported using nicotine only.

The Department of Public Health has also admitted that by putting e-cigarettes back on the market, it is knowingly exposing the public to a product that it argued in court is no safer than traditional cigarettes and which it knows causes severe and potentially long-term health damage:

"In line with that testimony, Dr. Raby emphasized that it “is simply untrue” to claim that e-cigarettes are “safer” than traditional cigarettes." 

The Department of Public Health is also admitting that preventing additional cases of vaping-related lung illnesses is apparently no longer paramount, since it acknowledged two months ago that:

"the strong public interest in preventing additional vaping-related lung illnesses among Massachusetts residents, with attendant hospitalizations and potential deaths, is paramount."

"numerous medical experts have recognized the severe and potentially long-term effects of vaping, although the full extent of the damage is yet to be known." 

DPH also acknowledges that its decision to return e-cigarettes to the market is against the public interest because medical and public health professionals have still not determined the cause of the illness:

"the balance of equities and public interest weigh strongly in favor of keeping the Emergency Order in place while medical and public health professionals work to determine the cause of the illness." 

Importantly, the governor and DPH have made it clear that the outbreak is continuing, with more cases occurring weekly and that the cause of the outbreak remains unknown:

"the underlying public health concerns associated with the use of vaping products and e-cigarettes and identified in my September 24, 2019 declaration remain...". 

"We don’t understand what is causing these illnesses. From a public health point of view, we cannot recommend that anybody use vaping or e-cigarette products at this time." 

"The cause of e-cigarette or vaping-associated lung injury (EVALI) remains unknown and under investigation at both the state and federal level. The Department of Public Health recommends that people not use e-cigarettes or vaping products." 

The Rest of the Story 

In summary, the state has argued the following points:

1. Until the cause of the outbreak is known, it is imperative to ban the sale of all e-cigarettes in order to prevent more cases of severe and potentially fatal respiratory illness. 
2. Until it is known how many cases of the illness are due to vaping products sold in stores, failure to ban the sale of e-cigarettes will almost certainly lead to more cases of severe illness and possibly death, and the ban is necessary to protect the public's health. 
3. Until health officials are able to pinpoint the specific source of the vaping-related illnesses, it is necessary to prohibit the sale of electronic cigarettes to protect the public's health. 
4. As of December 11th, the cause of the outbreak was unknown. 
5. As of December 11th, the state did not know how many cases of the illness are due to vaping products sold in store. 
6. As of December 11th, the state is not able to pinpoint the specific source of the vaping-related illnesses. 

Synthesizing these six points, the state is acknowledging that by allowing electronic cigarettes to be introduced into the retail market on December 11th, there will almost certainly be more cases of severe illness and possibly death, that this action is putting the lives and health of Massachusetts residents at risk, and that the Department of Public Health is intentionally choosing not to continue a policy which it knows is necessary to protect the public's health.

The rest of the story is that the state has acted irresponsibly, is knowingly putting residents at serious risk of health damage or even death, and they are content and comfortable doing so because the goal of banning flavored e-cigarettes has been achieved.