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State enforcement strategy using FDA authorizations faces new lawsuit, board told
Summary
Cheryl Sabra of the Massachusetts Association of Health Boards told the Cellpro Board of Health that some municipalities are using absence of FDA marketing authorization to enforce flavored-nicotine prohibitions; she warned that retailers have sued 16 Massachusetts municipalities and the Department of Public Health, and recommended consulting municipal counsel before adopting similar local enforcement.
The Cellpro Board of Health heard July 7 from Cheryl Sabra, J.D., executive director of the Massachusetts Association of Health Boards, about a guidance used by some towns to enforce bans on flavored vaping products and oral nicotine pouches.
Sabra described a tactic used by the Leominster collaborative and other programs: because many flavored vaping and pouch products lack FDA marketing authorization (a marketing granted order, or MGO), local inspectors can identify unauthorized products and rely on municipal permit requirements — which require compliance with state, local and federal law — to pursue administrative actions such as permit hearings, suspensions or nonrenewal.
"Our strategy is that if you do not have an MGO, then you are not in compliance with federal law, and we will either let the board of health know that you're not in compliance and have you in for a hearing, to determine whether or not to suspend or revoke your permit," Sabra said.
Sabra cautioned that the approach is legally sensitive. She told the board that 16 municipalities and the Massachusetts Department of Public Health were sued last Thursday by retailers challenging the strategy; plaintiffs are seeking preliminary injunctions, and municipal attorneys only recently received the filings so hearings have not been scheduled. Southborough is not a defendant, she said.
Board members asked how adopting the guidance would change day-to-day enforcement. Sabra said it could lessen inspectors' burden by allowing permit-focused action instead of product-by-product enforcement, but she repeatedly recommended towns review the guidance with municipal counsel before adopting it while litigation is pending.
After the presentation, members agreed to send the matter to the town's counsel/Select Board for review and to await developments in the pending lawsuit before directing further enforcement actions.
