Photo: Hazem.M.Kamal/Shutterstock.com

A ban on the sale of flavored electronic cigarettes that has been imposed by New York Gov. Andrew Cuomo will be challenged in court, representatives from the industry said Monday, one day before a state panel is expected to promulgate the new rule.

The New York State Vapors Association has been speaking with attorneys about how they'll approach the litigation, but plans to take legal action either way, its president said.

"Of course we're going to have to take legal action," said Cheryl Richter, president of the group. "We've been talking to lawyers and the strategy isn't worked out yet, but we don't even know what the [emergency regulation] is going to say."

Richter did not say which attorneys they're considering for the challenge, but said the process of choosing a legal team is already underway.

They'll have to act fast if they want to immediately seek judicial review of Cuomo's ban. It's set to be approved Tuesday, with a leeway period of about two weeks, Cuomo said Monday. After that, store owners could be subject to civil enforcement actions from the state.

The process isn't like other executive actions taken by Cuomo. It has to go through the Public Health and Health Planning Council, a state entity that can promulgate regulations related to public health.

The panel, which Cuomo said is on board with an emergency action to ban the sale of flavored electronic cigarettes, also known as vapes or vaporizers, in New York is scheduled to meet Tuesday. If its members approve the ban, the council will issue an emergency regulation barring stores from selling those products.

Richter said they're waiting to see what, exactly, is included in the final regulation before they decide how to best move forward, from a legal perspective. As of now, they've heard conflicting ideas about what's expected from the panel.

"It's still a little too early for [the attorneys] to decide what the legal strategy is going to be. Frankly, I think they have so many options," Richter said. "How many ways can you look at this as unconstitutional?"

The ban was announced by Cuomo on Sunday after the state Department of Health documented more than five dozen lung illnesses that they've said were tied to the use of electronic cigarettes, or vaping.

Those individuals, state and federal officials have said, fell ill after using products that unlawfully contained THC, the active ingredient in marijuana, and vitamin E acetate, a thickening agent used to cut the effect of that drug.

Cuomo's taken other executive actions in recent weeks in response to the illnesses, as well, including a requirement that stores post warning signs about the potential health effects of electronic cigarettes where they're sold.

Another executive order issued by Cuomo last week requires state agencies in New York to ramp up public education campaigns about vaping, including in school districts. The issue, Cuomo said during a radio interview Monday, is that children are getting their hands on vapes and developing an addiction to nicotine.

"They are introducing nicotine to kids who are young. They know that it's addictive, they're doing what the tobacco companies did with cigarettes," Cuomo said. "They're advertising to them."

Cuomo said during a second radio interview Monday that state and federal officials don't know what the ultimate health consequences of vaping, in general, will be for frequent users. That's part of why selling them in flavors attractive to young people is such a problem, he said.

When asked if his executive ban on flavored electronic cigarettes would hold up in court, Cuomo appeared confident in his administration's legal authority to promulgate the regulation.

"It's abundantly clear on the evidence, we have young people dying," Cuomo said. "The law provides the Public Health Council with the ability to take emergency reasons for precisely this reason."

Richter argued Monday that Cuomo's ban would do nothing to address the illnesses documented by the state because those were thought to be caused by products purchased illegally. Instead, she said, stores selling legal products would bear the brunt of the harm.

"These small shops are basically being vilified and penalized for the actions of drug dealers," Richter said.

That's not to say that her group doesn't support stronger regulations around electronic cigarettes, particularly when it comes to illegal sales to children. They've advocated for stores to have technology that would verify the age of customers, either online or through their ID, she said.

They've also pushed for tighter marketing restrictions on those products, like barring any materials or flavors that would appeal to children. Cuomo wants the same, but said he wouldn't be able to do that without action from the Legislature next year.

"The stopping of the advertising from these companies, that requires legislation," Cuomo said. "I do need the Legislature to act and that would be next year."

Next year's legislative session is scheduled to being in January.

READ MORE:

Consumers in NY Overpaid $2B in Insurance Premiums Because of Opioid Crisis, State Says

Albany Challenge to Law Authorizing Undocumented Immigrants' Licenses Should Be Separate From Buffalo Case, Lawyers Say

Judge Strikes Down Outside Income Ban for NY Lawmakers, Upholds Salary Hike