Local e-cigarette sampling regulations can’t be enforced, appellate court says
The local health department has lost its appeal in a case about how it can regulate vape shops.
An injunction that keeps the Tacoma-Pierce County Health Department from enforcing certain regulations on the vaping industry was upheld Tuesday by an opinion of a three-judge panel of Division II of the state Court of Appeals.
The pro-vaping nonprofit Pink Lung Brigade got the injunction in 2018, granted by Superior Court Judge Edmund Murphy. The ruling kept the health department from enforcing its new regulations, which included restrictions on sampling and a ventilation requirement.
The health department appealed, arguing it had the authority to enforce the regulations.
“The Legislature has expressly prohibited local regulation of vapor product promotions and has expressly required that tasting and sampling be permitted,” Judge Rebecca Glasgow wrote for the appellate panel. “The more general express authority granted to local governments to regulate indoor vaping does not overcome these specific prohibitions. Because tasting and sampling are forms of vapor product promotions, the Board is preempted from regulating those activities within vapor shops.”
In order for shops to offer samples, the health department’s regulations required that they “have a specific type of ventilation system, that e-liquid offered for tasting must be nicotine-free, that tastings may only occur at the sales counter, and that no more than three customers may taste at one time,” Glasgow wrote in the opinion, signed by judges Lisa Sutton and Bradley Maxa.
The Pink Lung Brigade, which includes vaping retailers, did not respond to a News Tribune request for comment Tuesday.
Neither did a spokesperson for the health department.
Following the injunction in 2018, Director of Health Dr. Anthony Chen said in a statement: “Tacoma-Pierce County Board of Health has the authority to take this action. And the state law does not prevent us from taking additional steps to protect the health of our residents. New research shows more worrisome health effects.”
Last year the State Board of Health banned the sale of vapor products that have vitamin E acetate, following an outbreak of cases of lung injury associated with vaping.
“We are deeply concerned by a new study finding vitamin E acetate at the primary site of injury in patients’ lungs,” Secretary of Health John Wiesman said in a statement at the time. “While we still need more research to identify a definitive cause, the evidence we have linking vitamin E acetate to the outbreak demands immediate action to protect the public’s health. Furthermore, we are very aware there may be more than one cause for these lung injuries associated with vaping.”
The state Liquor and Cannabis Board website says that ban was extended for another 120 days March 11.
“Since the (Vaping Associated Lung Injury) outbreak began last summer, 2807 cases and 68 deaths from across the nation have been reported to the Centers for Disease Control and Prevention (CDC),” the website says. “Both the CDC and our state’s Department of Health have been focused on COVID-19 response, and the number of VALI cases hasn’t been updated since February 19. Nonetheless VALI is still an important issue to which LCB is responding.”
