COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss.

SUPERIOR COURT
CIVIL NO. 2019-3102-D

VAPOR TECHNOLOGY ASSOCIATION, IAN DEVINE
And DEVINE ENTERPRISE, INC.,
Plaintiffs,
vs.
CHARLIE BAKER, in his official capacity as Governor of the Commonwealth of
Massachusetts, and MONICA BHAREL, M.D. in her official capacity as
DEPARTMENT OF PUBLIC HEALTH COMMISSIONER,
Defendants.
MEMORANDUM OF DECISION AND ORDER
ON PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
On October 4, 2019, the plaintiffs Vapor Technology Association (“Association”), Ian
Devine (“Devine”) and Devine Enterprise, Inc. (“Company”) (collectively, “plaintiffs”) filed
their complaint against defendants, Charlie Baker, in his official capacity as Governor of the
Commonwealth of Massachusetts (“Governor”), and Monica Bharel, M.D., in her official
capacity as Department of Public Health Commissioner (“Commissioner”) (collectively,
“defendants”). They challenge an emergency order prohibiting the sale or display of all vaping
products to consumers until January 25, 2020. See the “Order of the Commissioner of Public
Health Pursuant to the Governor’s September 24, 2019 Declaration of a Public Health
Emergency” (“Order”). The Complaint alleges that the Order reflects executive over-reach,
which violates state constitutional separation-of-powers principles, and is arbitrary and
capricious. It seeks injunctive relief to invalidate the Order.
Accompanying the complaint was the “Plaintiff’s Motion for a Preliminary Injunction”
(“Motion”). The court heard argument on October 8, 2019 and took evidence from three live
witnesses on October 9 and 18, 2019. The parties supplemented their original filings with
1

 written filings on October 16 (defendants) and October 17 (plaintiffs). After hearing, the Motion
is ALLOWED IN PART AND DENIED IN PART.
PRELIMINARY FACTUAL FINDINGS
Solely for purposes of the Motion, and without in any way affecting the parties’ rights to
litigate the factual issues later in this case, the court finds, on the limited record available at the
preliminary injunction stage, that the parties are likely to prove following facts:
The Vaping Industry
Vaping devices (also known as “e-cigarettes”) are handheld electronic devices that
aerosolize a liquid mixture containing nicotine, cannabis-derived products or other ingredients.
The Governor’s Declaration of Emergency dated September 24, 2019 (“Declaration of
Emergency”) lists a number of components that vaping products may contain, including THC,
flavorings, propylene glycol, vegetable glycerin and, sometimes, toxic chemicals or metal
particles. A user inhales the aerosolized vapor into the lungs. Unlike traditional combustible
cigarettes, vaping devices do not produce flame or ash. Some professionals and officials view ecigarettes as a safer alternative to smoking combustible cigarettes. Others disagree.
Nicotine e-liquids were subjected to regulation by the U.S. Food and Drug
Administration (“FDA”) as of August 8, 2016 and have been on the market in their current form
since mid-2017.
The vaping-products industry employs approximately 166,000 people nationwide,
including approximately 2,530 in Massachusetts. In Massachusetts, employers include 8
nicotine-vapor products manufacturers, 1 nicotine-liquid-mixture manufacturer and 221 retail
vape shops. Massachusetts vapor-products companies and sellers and their employees contribute
2

 nearly $19 million in state taxes. Sales taxes on vaping products in Massachusetts generate
about $10.7 million annually. The plaintiffs assert that the Order will force a permanent shut
down of stores, including Devine’s.
The Order
The Order’s operative paragraph reads:
The sale or display of all vaping products to consumers in retail establishments, online
and through any other means, including all non-flavored and flavored vaping products,
including mint and menthol, including tetrahydrocannabinol (THC) and any other
cannabinoid, is prohibited in the Commonwealth.
The Order then defines the term “vaping products” and exempts “any product that has been
approved by the federal Food and Drug Administration either as a tobacco use cessation product
or for other medical purposes and which is being marketed and sold or prescribed solely for the
approved purpose.” The Order “takes effect immediately and shall remain in effect, unless
extended with the approval of the Governor and the Public Health Council, through January 25,
2020, or until the declared public health emergency is terminated, or the Order is otherwise
rescinded by me, whichever happens first.”
The Order also provides for enforcement by fines and other means:
Pursuant to the authority granted by G.L. c. 17, § 2A, this Order may be enforced in the
manner of a regulation adopted pursuant to G.L. c. 111, § 31, and by injunction through
proceedings initiated in the Superior Court. A person or entity found in violation of this
Order may also be subject to the maximum fine provided in G.L. c. 111, § 31; provided
that violations shall be calculated on a per item and per transaction basis and may be
punished cumulatively. [Emphasis added].
On October 4, 2019, apparently in response to federal litigation, the Commissioner made certain
clarifications or changes not relevant here, in an “Implementation Order, Order of the
Commissioner of Public Health Pursuant to the Governor’s September 24, 2019 Declaration of a

3

 Public Health Emergency.”
The Science
The parties appear to agree on certain points. Since August, 2019, a serious, multistate
outbreak of vaping-associated pulmonary disease has come to the attention of the medical and
public health professions, as well as regulators. The parties to this case agree that vaping THC
products and products obtained on the black market cause such disease. They disagree whether
nicotine vaping products also have caused this disease.
The most authoritative and objective discussion of the lung injury outbreak caused by
vaping appears in the publications of the Centers for Disease Control and Prevention (“CDC”)
and the FDA. As of October 17, 2019, the CDC has published the following information, among
other things, on its website (https://www.cdc.gov/tobacco/basic_information/e-cigarettes/severelung-disease.html) (last visited October 18, 2019):
What We Know

As of October 15, 2019, 1,479* lung injury cases associated with the use
of e-cigarette, or vaping, products have been reported to CDC from 49 states (all
except Alaska), the District of Columbia, and 1 U.S. territory.

Thirty-three deaths have been confirmed in 24 states.

All patients have reported a history of using e-cigarette, or vaping,
products.

We do know that THC is present in most of the samples tested by
FDA to date, and most patients report a history of using THC-containing
products.

The latest national and state findings suggest products containing
THC, particularly those obtained off the street or from other informal
sources (e.g. friends, family members, illicit dealers), are linked to most of
the cases and play a major role in the outbreak.

As such, we recommend that you should not use e-cigarette, or vaping,
products that contain THC.

Since the specific causes or causes of lung injury are not yet known, the
only way to assure that you are not at risk while the investigation continues is to
4

 consider refraining from use of all e-cigarette, or vaping, products

The use of e-cigarettes, or vaping, products is unsafe for all ages,
including youth and young adults. Nicotine is highly addictive and can harm
adolescent brain development, which continues into the early to mid-20s.
What We Don’t Know


At this time, FDA and CDC have not identified the cause or causes of the lung
injuries in these cases, and the only commonality among all cases is that patients
report the use of e-cigarette, or vaping, products.



No one compound or ingredient has emerged as the cause of these illnesses to
date; and it may be that there is more than one cause of this outbreak. Many
different substances and product sources are still under investigation. The specific
chemical exposure(s) causing lung injuries associated with e-cigarette
product use, or vaping, remains unknown at this time.

What CDC Recommends







CDC recommends that people should not:
o Use e-cigarette, or vaping, products that contain THC.
o Buy any type of e-cigarette, or vaping, products, particularly those
containing THC, off the street.
o Modify or add any substances to e-cigarette, or vaping, products that are
not intended by the manufacturer, including products purchased through
retail establishments.
At present, CDC continues to recommend that people consider refraining from
using e-cigarette, or vaping, products that contain nicotine.
If you are an adult using e-cigarette, or vaping, products to quit cigarette smoking,
do not return to smoking cigarettes. Use evidence-based treatments, including
healthcare provider counseling and FDA approved medications. [icon omitted]
If you have recently used an e-cigarette or vaping product, see a healthcare
provider immediately if you develop symptoms like those reported in this
outbreak.
Irrespective of the ongoing investigation:
o E-cigarette, or vaping, products should never be used by youths, young
adults, or women who are pregnant.
o Adults who do not currently use tobacco products should not start using ecigarette, or vaping, products.
o THC use has been associated with a wide range of health effects,
particularly with prolonged heavy use. The best way to avoid potentially
harmful effects is to not use THC, including through e-cigarette, or
vaping, products. Persons with marijuana use disorder should seek
5

 evidence-based treatment by a health care provider.
o There is no safe tobacco product. All tobacco products, including ecigarettes, carry a risk.
o CDC will continue to update guidance, as appropriate, as new data
emerges from this complex outbreak.
Latest Outbreak Information











As of October 15, 2019, 1,479* lung injury cases associated with e-cigarette use,
or vaping, have been reported to CDC from the District of Columbia, 1 U.S. territory
(USVI) and all 49 states (all except Alaska).
Thirty-three deaths have been confirmed in 24 states: Alabama, California (3),
Connecticut, Delaware, Florida, Georgia (2), Illinois, Indiana (3), Kansas (2),
Massachusetts, Michigan, Minnesota (3), Mississippi, Missouri, Montana, Nebraska,
New Jersey, New York, Oregon (2), Pennsylvania, Tennessee, Texas, Utah and
Virginia. More deaths are under investigation.
o
The median age of deceased patients was 44 years and ranged from 17 to
75 years.
Among 1,358 patients with data on age and sex:
o
70% of patients are male.
o
The median age of patients is 23 years and ages range from 13 to 75 years.
o
79% of patients are under 35 years old.
o
By age group category:

15% of patients are under 18 years old;

21% of patients are 18 to 20 years old;

18% of patients are 21 to 24 years old;

25% of patients are 25 to 34 years old; and

21% of patients are 35 years or older.
To date, national and state data suggest that products containing THC, particularly
those obtained off the street or from other informal sources (e.g., friends, family
members, or illicit dealers), are linked to most of the cases and play a major role in
the outbreak.
All patients have a reported history of e-cigarette product use, or vaping, and
no consistent evidence of an infectious cause has been discovered. Therefore, the
suspected cause is exposure to a chemical or chemicals.
The specific chemical exposure(s) causing lung injuries associated with ecigarette use, or vaping, remains unknown at this time.
Among 849 patients with information on substances used in e-cigarette, or
vaping, products in the 3 months prior to symptom onset**:
o
About 78% reported using THC-containing products; 31% reported
exclusive use of THC-containing products.
o
About 58% reported using nicotine-containing products; 10% reported
exclusive use of nicotine-containing products.
6

 

This complex investigation spans almost all states, involves over a thousand
patients, and involves a wide variety of brands and substances and e-cigarette, or
vaping, products. Case counts continue to increase and new cases are being reported,
which makes it more difficult to determine the cause or causes of this outbreak.

(Emphasis added). The court notes the CDC’s different recommendations for THC, blackmarket and modified products (“should not use”) and for nicotine products (“CDC continues to
recommend that people consider refraining from using e-cigarette, or vaping, products that
contain nicotine”) (Emphasis added). CDC also has stated: “the predominant use of prefilled
THC-containing cartridges among patients with lung injury associated with e-cigarette use
suggests that they play an important role.” CDC does not address the specific issues raised by
medical use of marijuana. Nor does the court in this case at this time.
The FDA’s recommendations are similar, though focused even more directly upon THC,
black market and modified vaping products. See https://www.fda.gov/consumers/consumerupdates/vaping-illness-update-fda-warns-public-stop-using-tetrahydrocannabinol-thc-containingvaping (last visited October 18, 2019). Its latest update bears the title: “Vaping Illness Update:
FDA Warns Public to Stop Using Tetrahydrocannabinol (THC)-Containing Vaping Products and
Any Vaping Products Obtained Off the Street/ FDA strengthens warning to public to stop using
THC-containing vaping products and any vaping products obtained off the street.”
FDA recommends:
Recommendations for the Public:

Do not use vaping products that contain THC.

Do not use vaping products—particularly those containing THC—
obtained off the street or from other illicit or social sources.

Do not modify or add any substances, such as THC or other oils, to
vaping products, including those purchased through retail establishments.

No vaping product has been approved by the FDA for therapeutic uses or
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 authorized for marketing by the FDA. The agency recommends contacting your
health care provider for more information about the use of THC to treat
medical conditions.

No youth or pregnant women should be using any vaping product,
regardless of the substance. Adults who do not currently use tobacco products
should not start using these products. If you are an adult who uses e-cigarettes
instead of cigarette smoking, do not return to smoking cigarettes.

If you choose to use these products, monitor yourself for symptoms (e.g.,
cough, shortness of breath, chest pain) and promptly seek medical attention if you
have concerns about your health. . . . [Emphasis supplied].
There is a complete disagreement as to other aspects of the science, particularly on
whether any scientific basis exists to ban the sale of nicotine vaping products to adults. On these
points, the court treads lightly, recognizing that even experts cannot resolve some aspects of the
dispute and that the court is not a medical, epidemiological or scientific expert. To the extent
that findings are necessary to facilitate an appeal, the court adopts the CDC’s assessment (above)
as preliminary facts.
Each side has presented experts, attacked by the other side as not credible. A credibility
attack borders on futile, given the split in the public health community over whether a total ban
on retail nicotine vaping products will do more harm than good. The fact that the experts
disagree does not lead the court to adopt the analysis of one or the other expert. That just reflects
the existing disagreement in the public health community. The experts have the necessary
credentials, have reviewed the data and literature thoroughly, and have applied their expertise
appropriately to the scientific evidence. Without hesitation, the court finds each testifying expert
credible.
The record elaborates on why nicotine-vaping products cannot be ruled in or out as a
cause of the outbreak. While 10% (previously 13% or 17%) of vaping lung injury patients report
using nicotine vaping products only, there are reasons why patients might not report using THC.
8

 As CDC stated in an article dated September 27, 2019: “patients might not always know what
substances they use or might be hesitant to reveal use of substances that are not legal in their
state.” In a study of patients from Illinois and Wisconsin (where the outbreak was first
publicized), the CDC stated: “In Wisconsin, eight patients initially denied using THC-containing
products in interviews, but five (63%) were later found to have used THC through review of
medical charts, re-interview, or cross-referencing with friends who were also interviewed as
patients.”
The record in this case reinforces CDC’s concerns about the reliability of the selfreported data. Even as this court held hearings on the Motion, the CDC’s published data
reflected declining percentages of patients who “reported exclusive use of nicotine-containing
products.” The CDC reported that percentage as 17% as of October 3, 2019 (Comm. Ex. U),
13% as of the October 9 hearing and 10% as of the October 18 hearing (Hearing Exhibit 8). This
steep and rapid decline almost certainly reflects improved questioning and verification by
investigators.1 It now appears that at least a major portion of the data previously cited by the
Commonwealth is an artifact of the self-reporting process. The record includes no verified or
confirmed data about exclusive nicotine use. At a minimum, the credibility of the self-reports on
that issue is seriously in question and may be unreliable for purposes of banning an entire
industry. Indeed, the CDC’s latest update eliminates the statement that previously appeared in
its October 11 update to the effect that: “Therefore, the possibility that nicotine-containing
products play a role in this outbreak cannot be excluded.” The Order predated, and therefore
does not reflect any consideration of, these recent developments. Nor does the record show that

9

 any comprehensive follow-up and verification has occurred (or is even possible at this point) to
determine the accuracy of the reports of exclusive nicotine use by 10% of the patients.
It is true that nicotine-vaping products have been in use for several years, while the THC
recreational vaping products are far more recent. The plaintiffs’ expert considers that fact, along
with demographic data, as supporting the conclusion that something other than nicotine-vaping
products must be causing the outbreak, which came to light only in summer 2019. There is
substantial force to this argument. However, although the current outbreak may be a new
phenomenon, it may also reflect a recent recognition of a problem that has been ongoing for
several years. Only recently have public health professionals been asking the right questions to
determine, for instance, exposure to THC or black market products. It may also be that
ingredients, such as specific flavorings, have changed recently.
Neither the CDC nor the FDA recommend governmental action to van all nicotine-vaping
products. No state other than Massachusetts has enacted such a broad ban. The record identified
only one other governmental body (San Francisco) with such a ban. Some states have opted for
narrower bans on, for instance, flavored products or THC vaping products. Sales to minors and
on school busses or grounds are already illegal. G.L. c. 71, § 2A; c. 270, § 6. So are black
market products.
DISCUSSION
To obtain preliminary relief, plaintiffs must prove a likelihood of success on the merits of
the case and a balance of harm in their favor when considered in light of its likelihood of
success. Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 616-617 (1980). “One ... is not

1

The alternative explanation – that nicotine-vaping products are causing proportionately fewer and fewer injuries –

10

 entitled to seek [injunctive] relief unless the apprehended danger is so near as at least to be
reasonably imminent.” Shaw v. Harding, 306 Mass. 441, 449-50 (1940). A party seeking to
enjoin governmental action must also ordinarily show that “the relief sought will [not] adversely
affect the public.” Tri-Nel Mgt. v. Bd. of Health of Barnstable, 433 Mass. 217, 219 (2001),
citing Commonwealth v. Mass CRINC, 392 Mass. 79, 89 (1984).
I.
Without a public hearing, notice and comment, or any explicit statement of fiscal or small
business impacts under G.L. c. 30A, the executive branch has prohibited the sale or display of all
vaping products to consumers until January 25, 2020. The plaintiffs argue that this violates
article 30 of the Declaration of Rights of the Massachusetts Constitution. Article 30 mandates a
separation of governmental powers in order to provide structural protections for the liberty of our
citizens and preserve the rule of law. It reads:
In the government of this commonwealth, the legislative department shall never exercise
the executive and judicial powers, or either of them: the executive shall never exercise
the legislative and judicial powers, or either of them: the judicial shall never exercise the
legislative and executive powers, or either of them: to the end it may be a government
of laws and not of men. (Emphasis Added).
A.
“The power to regulate is a delegated legislative function that lies at the heart of the
executive responsibility to enforce the law.” “Rulemaking by Administrative Agencies Under
the APA,” in Massachusetts Administrative Law and Practice, § 2.01, p. 2-2 (Lexis Nexis 2015
ed.). “An administrative body does not have any inherent authority to issue regulations.” Telles
v. Commissioner of Ins., 410 Mass. 560, 563 (1991). The plaintiffs here assert that the

would not support the Order, either.

11

 defendants have acted without any valid delegation of legislative authority. That argument
requires close examination of the statute under which the defendants acted. Indeed, in their
recently-filed Reply in Support of Motion for Preliminary Injunction, the plaintiffs do just that.2
As the defendants see it, G.L. c. 17, § 2A (“§ 2A”) gives the executive branch all the
legislative authority and direction that it needed to promulgate the Order. That section reads, in
its entirety:
Upon declaration by the governor that an emergency exists which is detrimental to the
public health, the commissioner [of public health] may, with the approval of the governor
and the public health council, during such period of emergency, take such action and
incur such liabilities as he may deem necessary to assure the maintenance of public
health and the prevention of disease.
The commissioner, with the approval of the public health council, may establish
procedures to be followed during such emergency to insure the continuation of essential
public health services and the enforcement of the same.
Upon declaration by the governor that such emergency has terminated, all powers granted
to and exercised by the commissioner under this section shall terminate. [Emphasis
added].
It may be an open question whether this statute authorizes broad relief in the nature of a
regulation affecting (and, indeed, stopping) an entire industry. In the leading case addressing
public health regulations of an entire industry, the Department of Public Health proceeded by
emergency regulation under G.L. c. 30A, § 2, rather than under c. 17, § 2A. American Grain
Products Processing Institute v. Department of Public Health, 392 Mass. 309 (1984). Rejecting
an argument that the Department must proceed under § 2A instead of c. 30A, the court stated:

2

In a sense, any Article 30 challenge alleging that an executive official exercised legislative power includes the
question whether any statute, properly construed, delegates authority for the executive branch to act. In this case, it
is the defendants who have asserted authority under § 2A, thus requiring the court to construe that section before
passing on any constitutional question, regardless of the breadth of the plaintiffs’ constitutional argument. Cf.
Commonwealth v. Paasche, 391 Mass. 18, 21 (1984). If the defendants were suggesting during the first hearing that
the plaintiffs did not make any such argument, the court still had the duty to construe § 2A even then. In any event,

12

 The only reported instance of the exercise of G.L. c. 17, § 2A, is the Commissioner’s
takeover in 1976 of the operation of Woodland Nursing Home in Methuen and his
payment of its employees and suppliers. See Davidson v. Commonwealth, 8 Mass. App.
Ct. 541, 543–544 (1979). We believe that it was this sort of expenditure and
administrative action which § 2A was designed to allow.
Id. at 321 (Emphasis added).3 The Supreme Judicial Court concluded:
Accordingly, in the absence of any indication of legislative intent to the contrary,
[footnote omitted] we construe G.L. c. 17, § 2A, to have conferred on the Commissioner,
in a declared emergency, powers which neither he nor the department previously
possessed. We do not construe it to have transferred the power to adopt emergency
regulations from the department to the Commissioner.
Id., 392 Mass. at 322 (Emphasis added).4 This may mean that, while the Commissioner obtained
powers under § 2A, she lacks the power to adopt emergency regulations. Yet, that is exactly
what she did in issuing the Order.5 Under binding precedent, therefore, the Commissioner may
lack the power she asserts here, which may reside solely in the Department, acting as such, in
compliance with G.L. c. 30A, § 2.
Recognizing that the above-quoted passages from American Grain do not squarely hold
that regulations exceed the scope of the phrase “take . . . action” in § 2A, even as dicta, they are
binding upon this court. The dicta certainly suggest that the plaintiffs have a significant

the plaintiffs’ supplemental memorandum, filed on October 17, clearly argues the limited scope of § 2A and the
import of American Grain Products Processing Institute v. Department of Public Health, 392 Mass. 309 (1984).
3

In addition to American Grain and Davidson, the only other reported case citing G.L. c. 17, § 2A is Bleeker v.
Dukakis, 665 F.2d 401 (1st Cir. 1981). Bleeker is of no relevance here as it involved a claim brought under 42
U.S.C. § 1983 by the administrator of the same nursing home at issue in Davidson concerning his termination, and
that court merely cited the statute as the basis under which the Commonwealth took control of the nursing home’s
operations. See Bleeker, 665 F.2d at 402, n. 1.
4

The defendants repeatedly cite the first sentence of this quote out of context, i.e. without addressing the second
sentence. This leaves the court without any argument from the defendants on the meaning of the text in bold.
In addition to the Order’s own reference to enforcement of its terms as though a regulation, the discussion below
shows that the Order meets the controlling definition of regulation in G.L. c. 30A, § 1(5). Of course, actions such as
increased availability of nicotine cessation products or public dissemination of information and warnings does not
fall within the questionable category and, appropriately, are not even challenged in this case.
5

13

 likelihood of success in arguing that the Order exceeds any authority delegated by the
Legislature in § 2A. That is, they may well succeed in showing that the defendants exceeded
their statutory authority.
The defendants object that the Order is not a “regulation.” But the Order itself provides
that it “may be enforced in the manner of a regulation . . ..” More basically, the Executive
Branch has no authority to disregard the Legislature’s broad definition of the term “regulation,”
which reads:
(5) “Regulation” includes the whole or any part of every rule, regulation, standard or
other requirement of general application and future effect, including the amendment or
repeal thereof, adopted by an agency to implement or interpret the law enforced or
administered by it, but does not include (a) advisory rulings issued under section eight; or
(b) regulations concerning only the internal management or discipline of the adopting
agency or any other agency, and not substantially affecting the rights of or the procedures
available to the public or that portion of the public affected by the agency’s activities; or
(d) regulations relating to the use of the public works, including streets and highways,
when the substance of such regulations is indicated to the public by means of signs or
signals; or (e) decisions issued in adjudicatory proceedings.
G.L. c. 30A, § 1(5). The Order is plainly a “requirement of general application and future
effect.” The term “agency” includes any “official of the state government, authorized by law to
make regulations.”6 G.L. c. 30A, §1(2). None of the exceptions applies here. Although invited
by the court to explain why the Order is not a “regulation,” the defendants have provided no
logical theory why the Order falls outside this definition. By the statute’s clear language, the
Legislature has bound the executive and judicial branches to consider the Order a “regulation.”
Any entity with power to enact regulations such as the Order must comply with G.L. c.
30A, §§ 2, 3 in doing so. Agency compliance with G.L. c. 30A, §§ 2, 3 when adopting

14

 regulations is not optional. Those provisions use mandatory language (“shall” and “is
required”). Again, the defendants do not challenge the mandatory nature of that plain language.
In response to the court’s questions about G.L. c. 30A, §§ 2, 3, the defendants respond
that § 2A gives the Commissioner independent authority to act, while the Department of Public
Health has the power to enact emergency regulations. See Defendants’ Supplemental
Memorandum in Opposition to Plaintiffs’ Motion for a Preliminary Injunction at 4. This is a
non-sequitur. The defendants must show two things: (1) that the Commissioner has the power to
adopt an Order that meets the definition of “regulation,” and (2) that she may do so without
complying with G.L. c. 30A, §§ 2, 3. These two components are black-letter administrative
law.7 Granting that § 2A provides independent authority to take “action” and even assuming
(contrary to the above discussion) that “action” includes the Order, nothing in its language
provides explicit or implicit authority to adopt a regulation without complying with G.L. c. 30A,
§§ 2, 3. Nor does it purport to authorize the defendants to legislate a new exception to the
definition of “regulation” in G.L. c. 30A, § 1(5). Appropriately, the defendants expressly
disclaim any argument that § 2A implicitly repeals any part of c. 30A. It is obviously possible to

6

An argument that the Commissioner lacks authority to make regulations would, of course, defeat any construction
of § 2A that would authorize the Commissioner to adopt a “requirement of general application and future effect.”
7
See, e.g., Rulemaking by Administrative Agencies Under the APA,” in Massachusetts Administrative Law and
Practice, § 2.01, p. 2-3 (Lexis Nexis 2015 ed.):
The focus of this chapter – i.e., what constitutes proper regulatory promulgation – is of foundational
importance. There are two primary components. The promulgating agency (1) must have pertinent
regulatory authority, and (2) must follow the process set forth in its enabling statute or the state
Administrative Procedure Act, G.L. c. 30A.
The reference to an agency –specific regulatory process applies where the agency’s enabling statute is inconsistent
with c. 30A. See id. n. 10, citing New England Milk Dealers Ass’n, supra. See also FN 8, infra. No one does, or
could, claim that anything in § 2A is inconsistent with c. 30A compliance. Section 2A merely identifies the
governmental bodies and officials who must approve the action – the Governor, Commissioner and Public Health
Council. If § 2A even authorizes a regulation such as the Order, section 2A dictates the bodies that must approve it,

15

 comply with the mandates of both § 2A and c. 30A, §§ 2-3. Cf. American Grain, 392 at 322
(statutes should be construed “to have consistent directives so that both may be given effect”).8
The plaintiffs are likely to show that the defendants lack executive power to violate the plain
language of c. 30A.
To succeed on their separation of powers claim, the plaintiffs do not actually need to
show a full-blown constitutional violation. They need only show that § 2A must be construed
narrowly to avoid an unconstitutional result. Cf. Pineo v. Executive Council, 412 Mass. 31
(1991) (construing statute not to apply where it would violate separation of powers). At a
minimum, American Grain identifies potential limits upon the use of § 2A to promulgate
regulations. Where the Order meets the definition of a “regulation” in G.L. c. 30A, § 1(5),
nothing in § 2A obviates the duty to comply with G.L. c. 30A, §§ 2 and 3 in implementing
regulations. The claim of executive authority to adopt the Order, in the face of these limits,
creates, at best, great uncertainty in a matter affecting the constitutional separation of powers.
That triggers the rule that “‘a statute is to be construed where fairly possible so as to avoid
constitutional questions.’” Commonwealth v. Jones, 471 Mass. 138, 143 (2016), quoting United
States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994). See also O'Brien v. Borowski, 461
Mass. 415, 422 (2012) (“we have not hesitated to construe statutory language narrowly to avoid
constitutional overbreadth”); Demetropolos v. Commonwealth, 342 Mass. 658, 660 (1961)

but not the process by which those bodies enact it. A contrary holding would vitiate c. 30A, §§ 2, 3, because
virtually every enabling statute identifies the body or official who must authorize a regulation.
8
The defendants’ view that c. 30A and § 2A are separate and irreconcilable seem to follow the reasoning of the
dissent in American Grain, 392 Mass. at n. 2 (Lynch, J. et al, dissenting). This court must, of course, follow the
majority’s reasoning. It also bears note that the dissent’s ultimate position actually required even more process and
stricter review of alleged emergency declarations than the majority and therefore could not support the Order even if
the dissent’s view had prevailed in the Supreme Judicial Court.

16

 (“where a statute may be construed as either constitutional or unconstitutional, a construction
will be adopted which avoids an unconstitutional interpretation”).
Reading § 2A to apply only to the type of administrative action identified in American
Grain would avoid a constitutional question here, and would favor the plaintiffs’ position. The
court therefore evaluates whether the constitutional issue is substantial.
B.
Even if “action” under § 2A includes something as broad as the Order, the question
remains whether such a construction is constitutional. Except to identify serious constitutional
questions that preclude an expansive interpretation of § 2A, it is not necessary to resolve the
constitutional question at this time.
Because it is the Legislature’s job to “set forth the fundamental policy decisions of the
state,” the Supreme Judicial Court has set forth the following test to determine whether a
delegation of legislative authority is valid:
In determining whether such a legislative delegation of authority is proper, we consider
three questions: “(1) Did the Legislature delegate the making of fundamental policy
decisions, rather than just the implementation of legislatively determined policy; (2) does
the act provide adequate direction for implementation, either in the form of statutory
standards or, if the local authority is to develop the standards, sufficient guidance to
enable it to do so; and (3) does the act provide safeguards such that abuses of discretion
can be controlled?”
Powers v. Sec’y of Administration, 412 Mass. 119, 127-28 (1992), quoting Chelmsford Trailer
Park, Inc. v. Chelmsford, 393 Mass. 186, 190 (1984).
The plaintiffs have some likelihood of success in establishing the defendants’ failure to
meet the first Powers factor. When a well-established public health emergency exists but is
arguably limited to discrete segments of an industry – as evidenced, for instance, by the CDC’s
17

 focus upon THC and black market products – choosing to shut down an entire industry
immediately may well be a “fundamental policy decision[]” rather than simply “the
implementation of legislatively determined policy.” Faced with that specific choice earlier this
year, the Massachusetts Legislature has declined to ban all vaping products. See Sen. Bill 1279
(2019); House Bill 1902 (2019). Moreover, as noted above, American Grain suggested (if not
held) that there are limits to the type of “action” included within § 2A, making it hard to discern
a “legislatively determined policy” that might justify action as broad as a regulation. When the
court cannot even say that adoption of a regulation is an “action” within the scope of § 2A, how
can it discern legislative policies to be implemented by such a regulation? If construed broadly
enough to encompass the Order, § 2A may well cross the line set forth in the first Powers factor.
At this point, it appears that, on its face, § 2A meets the second Powers factor. It
establishes standards for evaluation of the executive action, namely the existence of an
“emergency . . . which is detrimental to the public health.” Executive authority under § 2A
extends only to “action[s]” found “necessary to assure the maintenance of public health and the
prevention of disease.” (emphasis added). It is precisely that limitation, however, that calls into
question the use of § 2A to impose a ban so wide that it reaches parts of the industry (retail
nicotine products, for example) in ways that might prove unnecessary upon deeper consideration
after input from the public and affected businesses, such as that required by G.L. c. 30A, §§ 2, 3.
The defendants’ appropriate concession at the October 18 hearing that the ongoing youth vaping
epidemic is not an “emergency” illustrates how § 2A, as applied here, may not meet the second
Powers factor here. That is, if an “emergency” can be construed to include ongoing epidemics

18

 (as the Emergency Declaration appears to do, in part), then § 2A may well lack the necessary
discernable standards limiting the scope of executive action.
The constitutional questions deepen upon consideration of the third Powers factor,
namely whether § 2A “provide[s] safeguards such that abuses of discretion can be controlled.”
Section 2A – particularly as applied here – lacks the most basic safeguards that the Legislature
has provided for agency rulemaking. The lack of safeguards supports an inference that the
Legislature did not intend for executive “action” under § 2A to include full-blown regulations, as
American Grain seems to suggest. Even if one interprets the statute broadly, however, the
absence of safeguards against abuse of discretion is striking.
A contrast with safeguards provided in other contexts is instructive. Input from affected
industries and members of the public is a potent safeguard against executive abuse of discretion.
Under G.L. c. 30A, §§ 2 and 3 the promulgation of a regulation requires notice and comment,
even for an emergency regulation (though the regulation may become effective prior to notice
and comment if the agency files an emergency declaration). Including the public and affected
persons or businesses allows them to help the agency determine how best to regulate, while
minimizing collateral damage. Where, as here, the Order purports to be enforceable by fines,
G.L. c. 30A, § 2, actually requires a public hearing, because the Legislature has determined that
these additional, public processes are necessary to control abuses of discretion when enacting
these types of regulations.9 The Legislature has also limited the duration of any emergency
regulation to three months, in the absence of notice and comment. G.L. c. 30A, §§ 2 and 3.10

9

Of course, the Legislature likely had additional purposes in mind when it required notice and comment. Among
other things, including the public and affected persons and industries in the regulatory process promotes the actual
and apparent fairness of the process. It also holds the prospect of a more effective, less intrusive and generally

19

 The Legislature has also required the filing of a fiscal impact statement and small
business impact statement, so that no agency can regulate without considering the economic
impact of the regulation upon the regulated community, other affected individuals, the taxpayers
and the public in general. See G.L. c. 30A, § 5, as amended through St.1980, c. 329, § 28. This
section provides:
No rule or regulation so filed with the state secretary shall become effective until an
estimate of its fiscal effect including that on the public and private sector, for its first and
second year, and a projection over the first five-year period, or a statement of no fiscal
effect has been filed with said state secretary.
Moreover, c. 30A, §§ 2 and 5 provide, in part:
A small business impact statement shall be filed with the state secretary on the same day
that the notice is filed and shall accompany the notice. Notwithstanding section 6, the
state secretary shall include the full text of said small business impact statement on the
electronic website of the state secretary; provided, however, that the full text of the small
business impact statement may also be inspected and copied in the office of the state
secretary during business hours.
That small business impact statement shall include, but not be limited to, the following:
(1) an estimate of the number of small businesses subject to the proposed regulation;
(2) projected reporting, recordkeeping and other administrative costs required for
compliance with the proposed regulation;
(3) the appropriateness of performance standards versus design standards;

better regulation, informed by the input of those who are affected and who often tend to be the most knowledgeable
about certain aspects of a given problem. The Order provides none of that.
10

It is true that the Legislature has, on rare occasions, provided for unique processes to enact regulations, outside c.
30A. See New England Milk Dealers Ass’n v. Department of Food & Agric., 33 Mass. App. Ct. 935, 936 (1992),
discussing G.L. c. 94A, §§ 11, 16-19. In that case however, the Legislature provided for more process, not less, and
required a full evidentiary hearing on the record. The same is true of industry-wide ratemaking, which is sometimes
viewed as regulatory or legislative in nature, but nevertheless requires a full evidentiary hearing. See, e.g., G.L. c.
25, § 5; G.L. c. 175, § 113B. None of the exceptions to c. 30A known to the court suggest the validity of any
process that provides fewer safeguards against abuse of discretion than c. 30A, §§ 2 and 3.

20

 (4) an identification of regulations of the promulgating agency, or of another agency or
department of the commonwealth, which may duplicate or conflict with the proposed
regulation; and
(5) an analysis of whether the proposed regulation is likely to deter or encourage the
formation of new businesses in the commonwealth;
These requirements guard against the very concern raised by the plaintiffs here; there is no
suggestion in the record that the defendants considered the fiscal impact upon, for instance,
businesses who sell legal nicotine products to adults. It is easy for an agency to brush such
concerns aside unless a law like c. 30A, § 5 requires transparency about fiscal impact. Because
of all these safeguards, our courts have tolerated the executive exercise of authority that would
otherwise be exclusively legislative.
The defendants construe § 2A not to require such notice and comment (let alone a public
hearing) and, indeed, have provided none. The Legislature did not authorize promulgation of
regulations without that input. If the executive branch avoids such input and safeguards it
unwittingly creates an echo chamber in which government officials’ own viewpoints reinforce
each other, potentially causing unnecessary harm and ill-informed decisions, despite the best of
intentions. In this case, the Order also violates the three-month limit on emergency regulations
by imposing a ban upon vaping products for four months, and perhaps more. It imposes fiscal
impacts without transparent consideration by the agency, if the agency even considered those
impacts relevant.
The defendants argue correctly that the need for prompt action in an emergency often
supports executive action. See Comm. Mem. at 14, citing Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 636 (1952) (Jackson, J. concurring in the judgment). That principle does

21

 not excuse non-compliance with c. 30A – such as notice and comment, filing of a fiscal impact
statement and a three month duration – because c. 30A allows for emergency regulations to take
effect immediately upon filing with the Secretary of State, with other requirements to be satisfied
later. The need to immediate action might excuse taking these steps before the Executive acts,
but it provides no rationale for indefinite non-compliance. While the constitution does not
necessarily require all of the safeguards in G.L. c. 30A, § 2, the absence of any of those
safeguards cuts strongly in favor of the plaintiffs’ position. The plaintiffs argue, in part, that the
lack of safeguards have led Massachusetts to adopt an over-inclusive ban that no other state has
found necessary or appropriate. On this record, the court cannot disagree. The third Powers
factor therefore weighs against the validity of § 2A, if construed to authorize the Order.
Considering all three Powers factors, the plaintiffs are likely to succeed in proving that
the defendants’ construction of § 2A would, at a minimum, raise serious constitutional questions
under article 30 that require rejection of that broad view of executive power under the statute.
C.
Alternatively, the plaintiffs argue that the Order is arbitrary and capricious. It is not clear
what vehicle exists for review of action under § 2A like the Order. See generally Frawley v. City
of Cambridge, 473 Mass. 716 (2015). If no route for meaningful judicial review exists under
§ 2A, the absence of that safeguard against arbitrary action would be yet another reason to find
that the legislature has not lawfully delegated power to adopt the Order. Although § 2A contains
no judicial review provision, the parties appear to agree that the court should review the Order
under the arbitrary and capricious test. For purposes of the Motion, the court follows the parties’
lead.
22

 The plaintiffs are likely to succeed on this argument. Most simply, the Order is arbitrary
and capricious because it violates the law for all the reasons stated in parts IA and B, above.
That is, the defendants likely overreached the scope of their statutory authority in promulgating
the Order without duly adopting a regulation under G.L. c. 30A, § 2.
The plaintiffs also challenge the substantive basis for the Order. Assuming that the court
should review the Order’s rational basis under the arbitrary and capricious test, the standard of
rule in the usual case is well-settled. “‘Duly promulgated regulations of an administrative
agency are presumptively valid and ‘must be accorded all the deference due to a statute.’” Craft
Beer Distributors, Inc. v. Alcoholic Beverages Control Commission, 481 Mass. 506, 520 (2018)
(Emphasis added), quoting Pepin v. Division of Fisheries & Wildlife, 467 Mass. 210, 221
(2014), quoting Massachusetts Fed’n of Teachers, AFT, AFL-CIO v. Board of Educ., 436 Mass.
763, 771 (2002). The problem here is that the Order was not “duly promulgated” as a regulation.
The premise of deference is that the agency has fully considered a regulation that it has
“duly promulgated.” As the plaintiffs argued orally, the court should not defer to a regulation
that does not reflect the input and consideration that must precede lawful action. The parties
have not cited a case addressing substantive review of a regulation that was not duly
promulgated. That is not surprising, because any such regulation has no legal validity and would
be declared void without ever having to examine substantive issues. That is true here, as well.
Moreover, under the arbitrary and capricious test “[t]he process by which the information
is gathered, identified, and applied to the statutory standards under [governing law] must be
logical, and not arbitrary or capricious.” Allen v. Boston Housing Authority, 450 Mass. 242, 254
(2009), quoting Sierra Club v. Commissioner of the Dep't of Envtl. Mgt., 439 Mass. 738, 749
23

 (2003); Receiver of the Boston Hous. Auth. v. Commissioner of Labor & Indus., 396 Mass. 50,
58 (1985); Long v. Comm’r of Pub. Safety, 26 Mass. App. Ct. 61, 65 (1988) (citation omitted)
(an unreasoned decision willfully made “‘without consideration and in disregard of facts and
circumstances.’”). “[A]n abuse of discretion” exists where the decisionmaker “made ‘a clear
error of judgment in weighing’ the factors relevant to the decision, (citation omitted), such that
the decision falls outside the range of reasonable alternatives.” L. L. v. Commonwealth, 470
Mass. 169, 185 n. 27 (2014). See Frawley v. Cambridge, 473 Mass. 716, 720 (2016) (“lacks any
rational explanation that reasonable persons might support . . ..”) Here, the process by which the
information was “gathered, identified, and applied to the statutory standards” was arbitrary and
capricious because it ignored statutory criteria (e.g., fiscal and small business impact), included a
declaration of emergency based in part on a non-emergency (ongoing youth vaping epidemic)
and failed to provide numerous mandatory safeguards. See G.L. c. 30A, § 2. The Order was
made without consideration and in disregard of facts and circumstances from the public and
affected persons and entities that the Commissioner should have entertained in a public hearing
(or even a notice and comment process).
It follows that (1) the defendants are not entitled to defend on the ground that the court
must give the same degree of deference it would accord a duly promulgated regulation (2) the
process and substance of the decision-making likely was arbitrary and capricious and (3) the
plaintiffs are likely to succeed on their alternative argument that the Order is arbitrary and
capricious.

24

 II.
The balance of harms, including consideration of the public interest, favors the
defendants in some, but not all respects.
It is true that the plaintiffs have shown great irreparable harm, because the Order puts
many companies out of business for four months. As the plaintiffs’ affidavits show, there is a
strong likelihood of irreparable harm to these businesses, many of which are small and may even
go out of business. Their injury, though economic, amounts to irreparable harm because this
“loss threatens the very existence of the movant’s business.” See Hull Mun. Lighting Plant v.
Mass. Mun. Wholesale Elec. Co., 399 Mass. 640, 643 (1987). In this case, shutting down small
businesses for four months is indeed likely to threaten the existence of the plaintiffs’ businesses
and those of members of the Association.
On the other side of the equation, the evidence indisputably demonstrates numerous
vaping injuries and deaths. With respect to THC vaping products and black market vaping
products, the public health effects are clear and devastating. The plaintiffs do not urge the court
to enjoin implementation of the Order as to such products, and the court does not do so, leaving
that issue for future litigation (and noting that those who use THC vaping for medical reasons
potentially may be able to show much greater harm to their own health than can the present
plaintiffs).
The CDC’s assessment of retail nicotine-vaping products sold to adults is less dire.
Fairly stated, the strongest possible statement is that nicotine-vaping products cannot be ruled out
– but the CDC’s latest update on October 17 drops even that relatively mild statement, which
appeared in the October 10 update. The CDC and FDA recommend informational campaigns
25

 urging individuals to choose not to vape until the cause of the outbreak is known. They leave it
to individuals to decide how to address their addiction, if they cannot stop ingesting nicotine
altogether. Other states have followed that lead, banning something less than all nicotine vaping
products. That approach avoids one public harm that the Order may be inflicting: removing the
nicotine-vaping alternative may push individuals to the clearly-dangerous black market or to
other less beneficial nicotine alternatives.
The court also notes that the record does not establish a consensus among the CDC, FDA
or other state public health authorities for government action completely banning all retail
nicotine-vaping products. Massachusetts’ claim of irreparable harm is somewhat undermined by
the fact that no other state has enacted such a ban (and apparently only San Francisco has
followed suit among municipalities).
Still, there is serious potential harm to individuals and the public if it does turn out that
lawful nicotine-vaping is a factor in causing the current outbreak. If the court were considering
an immediate preliminary injunction against implementing the Order in its entirety as to
nicotine-vaping products, the balancing of public interest in this case would therefore be as
complex as diagnosing the vaping injury outbreak itself. Instead, in such a complex regulatory
context, the defendants must be the ones to assess these countervailing considerations after
receiving full input in a public hearing, articulating the fiscal and small business impact, and
otherwise complying with c. 30A. When the defendants fully comply with their obligations and
consider updated information that became available after September 24, the result could be no
order, a more limited order (as in other states), or reassertion of the same Order.

26

 There is no harm to the public interest and no legally cognizable harm to the defendants if
the court’s order gives the opportunity to enact the Order as an emergency regulation. The
provisions of G.L. c. 30A, § 2 do not harm the executive branch’s authority to take necessary
immediate action in the event of a true emergency, because an emergency regulation can be
adopted as quickly and easily. Complying with G.L. c. 30A, § 2 allows public input within a
limited time in a way that causes no harm whatsoever to the defendants or to the public interest.
In that regard, the avoidance of public scrutiny or expense of public process is not a cognizable
harm for purposes of preliminary injunction analysis, or separation of powers principles. The
public interest is served when the executive branch complies with the obligations placed upon it
by the Legislature and Constitution, particularly when considering a measure as broad as the
Order. It is also served when the executive branch explicitly considers the fiscal impact and
small business impact of the Order, as required by G.L. c. 30A, §§ 2, 3 and 5.
In sum, the plaintiffs have certainly suffered, and will suffer, very great and irreparable
financial impact, which should not be imposed prior to compliance with those sections according
to the public interest as declared by the legislature in adopting c. 30A. It is not at all clear why
the defendants have chosen not to provide the protections of c. 30A, which they could do even if
they contest their applicability. It is particularly hard to understand why they did not initiate
such proceedings once the issue arose in this case. Because the plaintiffs are suffering
significant harm and are likely to show that the Order is unlawful as presently promulgated, the
balance of harms weighs in favor of the limited relief granted below, which gives the defendants
the option to avoid any harm to the public interest by adopting, amending or rescinding the Order
as an emergency regulation.
27

 Preliminary Injunctive Relief
Key to the court’s choice of relief is the fact that the defendants could cure the
deficiencies identified in this Memorandum by proceeding under G.L. c. 30A, § 2.
There has been no notice and comment or public hearing, but the executive branch has
authority to adopt emergency regulations in a true emergency:
If the agency finds that immediate adoption, amendment or repeal of a regulation is
necessary for the preservation of the public health, safety or general welfare, and that
observance of the requirements of notice and a public hearing would be contrary to the
public interest, the agency may dispense with such requirements and adopt, amend or
repeal the regulation as an emergency regulation. The agency’s finding and a brief
statement of the reasons for its finding shall be incorporated in the emergency regulation
as filed with the state secretary under section five.
G.L. c. 30A, § 2. The Governor has already declared an emergency under § 2A, but the longstanding and ongoing youth vaping epidemic figured prominently in that declaration. It remains
to be seen whether the executive branch can or will declare an emergency with respect to adult
use of nicotine-vaping products. See Slis v. State of Michigan, No. 19-0152-MZ (Michigan
Court of Claims) (Opinion and Order dated October 15, 2019) (Preliminarily enjoining an
emergency ban on flavored nicotine products based upon the plaintiff’s likelihood of success in
challenging the agency’s emergency determination under the state APA).
The Order has not been filed as a regulation with the Secretary of State, although that
could be done easily within a week. The court also recognizes that the Commissioner may not
be the appropriate entity to adopt a regulation, but the proper regulatory body could adopt the
Order if it sees fit.

28

 There is no fiscal impact statement or small business impact statement, or equivalent, in
the record before the court. The Declaration of Emergency, Order, transcript of the Public
Health Council meeting of September 24, 2019 and the testimony at the hearing reflect no
executive branch discussion of these impacts. Under G.L. c. 30A, §§ 2, 3 and 5, the executive
branch must safeguard fiscal and small business interests by expressly incorporating these
impacts into the decision-making process. No reason appears why the defendants cannot comply
with this requirement. Without judicial relief, the plaintiffs will have no assurance that the
executive branch has explicitly determined the fiscal and small business impacts, which, of
course, are the plaintiffs’ prime concerns. Of course, explicit consideration of those impacts may
also produce a different outcome at the agency level.
Curing these defects is no small or technical matter. Complying with the mandatory
safeguards of c. 30A in adopting a regulation may well serve as a check upon abuse of discretion
here. At a minimum, it is for the agency to decide whether to re-enact the Order or revise it after
considering input from the public and affected parties and taking account of information received
since September 24. Consideration of fiscal impact and small business impact likewise ensure
that the breadth of the Order takes account of all factors mandated by the Legislature.
Compliance with c. 30A respects the legislature’s authority under Article 30, including
observance of statutory requirements. It also enables the judiciary to perform its proper role, by
making sure that the agency has done its statutory duty and has made its decisions in a judiciallyreviewable regulation.
Given the availability of a cure to the defects identified above, great uncertainty and
confusion would result if the court invalidated the Order immediately, only to see the Order
29

 lawfully adopted quickly after such invalidation. In curing the existing violations, to avoid
separation of powers issues and to avoid irreparable harm to the plaintiffs for more than the
three-month statutory period (G.L. c. 30A, §§ 2, 3), the executive branch would need to adopt an
emergency regulation effective as of September 24 or with a termination date on or before
December 24, 2019.11
The best course is to give the executive branch time to bring itself into compliance with
the Legislature’s mandates. If that does not occur, the court has a duty to see that the article 30
violation does not persist so long that the safeguards imposed in c. 30A will fail to achieve their
intended effect.
The court is aware that major substantive issues may remain even if the executive branch
complies with c. 30A. As noted above, the defendants have either not yet addressed those issues
(e.g., fiscal and small business impact) or have done so in a way that ignores important
distinctions, including whether there is any true “emergency” at this time concerning adult use of
nicotine-vaping products alone. Because the executive branch may choose to adopt a more
limited ban, or no ban at all – and will have the chance to consider new input and more recent
data, it is not appropriate for the court to rule more broadly on the issues in this case at this time.
If any further litigation is needed, the court will expedite proceedings, to avoid the ongoing harm
to the plaintiffs.

Given that, at the October 8 hearing, the court’s inquiries placed the defendants on notice of the possible need for
an emergency regulation, and the speed with which an emergency regulation can be filed, there should be plenty of
time to act within one week, i.e. October 28, 2019.
11

30

 ORDER
While the plaintiffs have shown a likelihood of success, the balance of harms weigh in
defendants’ favor in some respects, and an immediate injunction against the entire Order would
contravene the public interest. The court therefore allows the defendants an opportunity to cure
the defects identified above. Accordingly, the Plaintiffs’ Motion for Preliminary Injunction is
ALLOWED in part AND DENIED in part as follows:
1.

The Commissioner is preliminarily enjoined from implementing and enforcing
the Order from and after October 28, 2019 as to nicotine-vaping products unless and
until the executive branch promulgates the Order in compliance with G.L. c. 30A, §
2. The October 28 date shall be extended automatically until further order of the
court if the executive branch chooses to enact an emergency regulation by that date.

2.

The Commissioner is preliminarily enjoined from implementing and enforcing the
Order from and after December 24 as to nicotine-vaping products, unless during that
time the agency gives notice and holds a public hearing as required in G.L. c. 30A, §
2, and files notice of compliance with the state secretary.

3.

Notwithstanding paragraphs 1 and 2 above, nothing in this Memorandum and
Order shall affect the validity of the defendants’ Order as applied to products
containing tetrahydrocannabinol (THC) and any other cannabinoid or to black market
products. Nor does it preclude substituting compliance with G.L. c. 30A, § 3 in lieu
of § 2, if the executive branch adopts a substitute or amended order or regulation that
does not trigger G.L. c. 30A, § 2. This Memorandum and Order is without prejudice
to a challenge to any emergency regulations that may be promulgated, any challenge
31

 to any future declaration of emergency or any future action regarding the Order.
4.

The Motion for Preliminary Injunction is otherwise DENIED.

5.

Given the effective dates of the above orders and the possibility that the
defendants may choose to comply with c. 30A rather than file an appeal, the oral
request for a Stay is DENIED, as unnecessary at this time.

Dated: October 21, 2019

___________________________________
Douglas H. Wilkins
Associate Justice, Superior Court

32