Vapor Technology Association, et al. v. Cuomo, et al.
Vapor Technology Association, et al. v. Cuomo, et al.(N.Y. App. Div. Oct. 3, 2019): In September 2019, the New York State Public Health and Health Planning Council recommended an emergency executive order banning the sale of vape products with characterizing flavors, such as bubble gum or mango e-liquid. Health officials declared youth vaping a public health emergency in need of immediate response. Governor Cuomo issued an emergency order banning flavored vapes, effective October 4. The trade group, Vapor Technology Association (VTA), filed suit seeking a temporary restraining order and preliminary injunction. VTA alleged that issuance of the ban was outside the executive branch authority to the extent it usurped the power of the legislature. VTA also alleged that the ban: (i) lacked a rational basis, and was thus arbitrary and capricious; and (ii) was procedurally defective. After the trial court denied VTA’s request to immediately prohibit enforcement of the ban, the intermediate appellate court reversed that decision. It prohibited enforcement of the ban pending the outcome of a hearing on VTA’s motion for a preliminary injunction, which would prevent enforcement of the ban until the case is fully resolved. Read the decision here.
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