Massachusetts DPH Destroys Its Own Justification for the Emergency E-Cigarette Ban

The Massachusetts Department of Public Health (DPH), via a vote by the Public Health Council, has rescinded its emergency ban on the sale of electronic cigarettes which was issued on September 25. When the ban was implemented in September, the Department's rationale was that since we don't know what is causing the outbreak, there may be e-cigarettes that could be involved. Therefore, to protect the public's health, we need to ban the sale of e-cigarettes.

In rescinding the emergency order, DPH stated that the cause of the outbreak remains unknown. So by its own rationale which it invoked on September 25, there could still be e-cigarettes causing the outbreak and therefore we need to continue to ban the sale of e-cigarettes to protect the public's health.

By rescinding the ban, DPH is acknowledging that it wasn't actually necessary to ban the sale of electronic cigarettes back on September 25th because according to the Department, we still don't know what is causing the outbreak so we're in exactly the same position on December 11th as we were on September 25th. So how could banning electronic cigarettes be justified on September 25th but no longer appropriate on December 11th?

What changed between September 25th and December 11th?

What changed was that the Massachusetts legislature enacted a ban on flavored electronic cigarettes. However, this ban does not include tobacco-flavored e-cigarettes. There is absolutely no evidence to suggest that the e-cigarettes that may be associated with the outbreak are only the flavored varieties and not the tobacco-flavored ones. Therefore, allowing the continued sale of e-cigarettes, by the DPH's own rationale, is putting the lives of Massachusetts residents at risk.

In other words, the Massachusetts Department of Public Health has chosen to knowingly put the public at risk of developing a potentially fatal respiratory illness that, even when not fatal, is often life-threatening and requires mechanical ventilation for several days.

The Rest of the Story

I find this alarming. Frankly, it scares me to think that a state health department would knowingly put the public at risk of great harm from a potentially dangerous (and possibly fatal) product. Because the sale of electronic cigarettes was not allowed on December 10th, to suddenly allow the sale of e-cigarettes on December 11th is actively imposing a known risk upon the public. This is unethical by any standard. It is the last thing that any public health agency should do. It certainly violates the medical and public health code of ethical conduct: "to do not harm."

The only way that DPH could justify rescinding the ban and knowingly exposing the public to a known health hazard would be if the Department had discovered the cause of the outbreak and therefore could determine that electronic cigarettes no longer posed a risk of respiratory illness. However, the Department has made it clear, through multiple public statements--made as recently as December 11th--that the cause of the outbreak remains "unknown."

This has three important implications.

1. The Department of Public Health Has Admitted that Its Emergency Order was Not Necessary to Protect the Public's Health

The first implication of the rescinding of the emergency order is that it absolutely destroys the DPH's own justification for imposing the emergency ban on electronic cigarettes in the first place. By rescinding the emergency order on December 11th, the Department is acknowledging that the emergency order is not necessary. But if it is not necessary on December 11th - when DPH doesn't know the cause of the outbreak - then it was also not necessary on September 25th when DPH didn't know the cause of the outbreak. And if it was not necessary on September 25th, then DPH abused its power under chapter 17, section 2A of the Massachusetts General Laws because that section allows the Department of Public Health only to take actions that are "necessary" to protect the public's health.

If it is not necessary to ban all e-cigarette sales on December 11th, then it was not necessary to ban all e-cigarette sales on September 25.

In his letter declaring that the emergency is now over, the governor states very clearly that what he purported to be the emergency back on September 25th is actually not over. The letter states that: "the underlying public health concerns associated with the use of vaping products and e-cigarettes and identified in my September 24, 2019 declaration remain...".

So the governor is admitting that the public health concern that led to his declaration of an emergency still remains! But he then goes on to declare that because the legislature has enacted a flavor ban, the need for addressing these concerns has "abated." Since the flavor ban does not prohibit the sale of either tobacco-flavored electronic cigarettes or flavored e-cigarettes, which can still be sold in smoking bars, the governor is admitting that the respiratory disease outbreak was not the emergency in the first place. Instead, the governor is admitting that the emergency justifying the original order was the problem of youth vaping, since that's what the new law addresses, not the disease outbreak.

But here's the nail in the coffin of the Department's justification: DPH has already testified in Superior Court that the problem of youth vaping, while serious, is not an emergency.

So if the respiratory outbreak is not an emergency and the problem of youth vaping is not an emergency, then what was the emergency? By the governor's and DPH's own admission, there was no emergency. And therefore, there was no justification for its September 24th declaration of an emergency and its order that banned the sale of electronic cigarettes throughout the Commonwealth.

This confirms that what really occurred in Massachusetts is that the state used the respiratory disease outbreak as an excuse to impose a flavor ban. Once the flavor ban was imposed, the emergency no longer existed and the ban on e-cigarettes sales could be rescinded. Obviously, this had nothing to do with the respiratory disease outbreak because that outbreak is still occurring and both the governor and DPH admit that the public health concerns that justified the emergency declaration on September 24th still exist.

Thus, what the governor and DPH are now admitting is that the emergency order was essentially a political move, not a public health necessity. The goal was to ban flavored e-cigarettes, not to protect the public from an outbreak of severe, acute respiratory failure.

2. The Department of Public Health Has Unnecessarily Put Hundreds of Massachusetts Residents Out of Work and Destroyed their Livelihoods

As anyone who has heard me testify against Big Tobacco knows, I believe that we sometimes must be willing to put people out of business if it is absolutely necessary to protect the public's health. Health must come before business. However, only if it is absolutely necessary. What the state is now admitting is that it was completely unnecessary to put hundreds of small businesses out of business. It was unnecessary to destroy the livelihoods of so many people. It was unnecessary to force many ex-smokers to return to smoking. It was unnecessary to force many vapers to turn to the black market to obtain their products to keep them smoke-free. It was unnecessary for the state to force hundreds of business owners to sustain losses of tens of thousands of dollars by requiring them to destroy their entire inventories of vaping liquids.

3. The Department of Public Health is Apparently Willing to Knowingly Put People's Lives at Risk to Achieve a Legislative Goal

By its own admission, the Department of Public Health is putting the lives of the public at risk. They rescinded the ban on electronic cigarette sales when the governor and DPH have both acknowledged that the public health concerns regarding the outbreak of potentially fatal respiratory disease still remain. The state has also admitted that the cause of the outbreak remains unknown and that electronic cigarettes may be causing a substantial proportion of the cases. In its latest update, DPH reports that 32% of the cases in the state used only nicotine-containing products. In this light, how could DPH possibly allow the introduction of the sale of electronic cigarettes in the Commonwealth? How can they justify knowingly putting the lives of Massachusetts residents at risk?

It is scary to me to think that a state health department would be willing to knowingly risk the lives of the state's residents in order to advance a legislative goal. No matter how important that legislative goal may be, it does not justify putting people's lives at risk. While my opinion is that the legislation is actually going to cause substantial public health harm, even if we stipulate that this legislation is necessary to protect the health of youth in the state, it still does not justify the Department of Public Health knowingly putting those very lives at risk of severe health damage, or even death.