and not just any judge, but a state Supreme Court justice has struck down New York's ban on the sale of certain flavors for vapes, granting an injunction sought by the vaping industry that challenged the legality and constitutionality of an emergency order issued last year by Gov. Andrew M. Cuomo and the state Health Department.
The ban was issued in September by the state Department of Health's Public Health and Health Planning Council, a day after Cuomo signed an executive order to ban the sale of eLiquids and related vape products. The swift action to ban followed an outbreak of vaping-related illnesses and deaths across the country that we now know to be caused by black market products, making the ban outright nonsensical in the first place.
The decision by acting state Supreme Court Justice Catherine Cholakis noted the devastating impact the emergency order would have on those who vape and those who run vape shops. Cholakis found that the state had overstepped its authority and that the regulation of the vaping industry and flavored eLiquids specifically should be correctly handled by the Legislature.
In his decision Cholakis wrote; "this court's holding on the present motion is limited to the recognition that there is a likelihood that petitioners will ultimately succeed in proving that the emergency regulation is an impermissible administrative transgression into territory that is reserved to our Legislature by the state Constitution." Dang straight it is. Government nanny-stateism at it's finest, but that's what you get from New York.
Following Cuomo's executive order, the health council bypassed public notice and public comment periods normally used for regulatory action and issued their directive in a hastened procedure of emergency rule making.
The state's "emergency" regulation effectively was an effort by governor Cuomo's administration to use state policy making to limit the availability of vaping products in New York, but the judge found that type of action is "reserved constitutionally to the Legislature and not to the executive branch."
The ruling also noted that it remains unclear whether vaping industry would succeed in challenging the state's blanket ban as it relates to any health crisis, but found the separation of powers issue had trumped that. However the judge said the Legislature can step in and still take steps to regulate the industry.
The vapers of New York sought an injunction keeping the state from enforcing the order and declaring it unconstitutional, had argued that losing the case would have resulted in the shuttering of many of their businesses across the state.
The case was filed against the state by the Vapor Technology Association, which has roughly 800 members, and two of its affiliates. They argued the Health Department exceeded its authority in enacting a ban that state legislators had already considered during last year's legislative session.
What do you think about this judges ruling? Did she correctly step in and deliver justice or is there more to be desired from this act of political hoopla? Will New York ever get it's stuff together? How much has this cost the public's health in New York?