A trade group representing vape shops in New York filed papers Friday to intervene in a lawsuit against New York state over its ban on the sale of flavored e-cigarettes, which was put on hold Thursday by a state appellate court.

The New York State Vapor Association moved to insert itself into the lawsuit Friday, arguing that the interests of its members, retailers throughout the state, are implicated in the litigation.

"The loss of these products will put many stores out of business," the group wrote. "The regulation would literally outlaw many of the products that customers of vape shops (adult, legal customers) come to purchase."

They were joined on the motion to intervene in the lawsuit by six vaping companies, including retailers and distributors and manufacturers. Three of the businesses named in the motion claimed the state's ban will force them to close down if it's enforced.

The ban was scheduled to go into effect Friday, but was put on hold by an order handed down Thursday by the Appellate Division, Third Department in Albany.

The lawsuit is currently led by the Vapor Technology Association, a national group that represents manufacturers, wholesalers and retailers of e-cigarettes and related products. Attorneys for the State Vapor Association said they represent a narrower part of the industry.

"Unlike Petitioner VTA, NYSVA is a State association, with a mission that focuses on protecting the interests of vape businesses within New York," they wrote. "Upon information and belief, NYSVA is the only New York-specific trade association for this industry."

Attorneys for the State Vapor Association presented similar arguments as the Vapor Technology Association in the filing, focusing on claims of executive overreach through the ban.

The group was represented on the motion by Benjamin Neidl, a principal in the Albany office of law firm Jackson Lewis.

The state promulgated the ban in response to a series of vaping-related illnesses that have been reported in recent weeks, which peaked above 100 cases in New York alone Wednesday, according to the Department of Health.

New York Gov. Andrew Cuomo, in response to those reports, moved to outlaw the sale of flavored vaping products. The Public Health and Health Planning Council, a state entity charged with promulgating emergency regulations concerning public health, later approved the ban.

But that wasn't within the power of the Public Health Council, attorneys for the State Vapor Association claimed in their motion Friday. That authority rests with the Legislature, they wrote, which declined to take similar action in recent years.

"In recent years, individual legislators have proposed several different bills with different ideas about these matters," they wrote. "Yet, none of those ideas gained traction enough to be passed by the Legislature."

Those bills ranged from an outright ban on the sale of flavored e-liquids to more modest bans on certain advertising practices, the group wrote. Lawmakers declined to consider any of the proposed measures.

Attorneys for the state have argued that the ban was necessary to protect public health because e-cigarettes are largely unregulated, meaning that consumers don't always know what's in them.

The State Vapor Association addressed that argument in its filing Friday by saying if the state actually wanted to address a public health emergency, it would outlaw traditional cigarettes, which they said are more dangerous than e-cigarettes.

"Respondents' action was arbitrary and capricious because the regulation allows for the continued sale of combustible tobacco cigarettes—which are also illegally used by youth— while banning a large swath of substantially less harmful vapor products," they wrote.

They also argued that the state's ban on flavored e-cigarette products was misdirected because the illnesses in question were said to be linked to illegal cannabis vaping products.

The group is also seeking to have the ban reversed based on alleged violations of the state Administrative Procedure Act, which they said required the state to provide notice of the rule and solicit public comment before it was finalized.

Representatives from the state Department of Health, which spearheaded the ban with Cuomo, did not immediately comment on the State Vapor Association's motion Friday.

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