Federal lawsuit alleges R.I. ban on flavored vapes is unconstitutional

Weeks before the scheduled start of a new state law banning flavored e-cigarettes, or vapes, a pair of local businesses want a federal judge to snuff it out.

The Nov. 26 complaint filed in the U.S. District Court for the District of Rhode Island by retailers Vaporetti LLC and Sunshine Vape LLC argues that the law is unconstitutional, poorly defined and “irrational,” asking a judge to overturn it before it takes effect on Jan. 1.

“Even if the Act only goes into effect for a short time and is subsequently vacated or amended, Plaintiffs still will suffer irreparable harm from lost inventory, lost revenue, loss of goodwill, and business disruption,” the complaint states.

It names as defendants the Rhode Island Department of Health and its director, Dr. Jerry Larkin; the Department of Revenue and its director, Thomas Verdi; and the Division of Taxation and Neena Savage, state tax administrator.

Rhode Island first attempted to outlaw flavored vape products under a 2019 executive order signed by then-Gov. Gina Raimondo. But it has not been enforced, evidenced by the fact that the owners of Sunshine Vape and Vaporetti each said in sworn court affidavits that flavored vape sales account for 70% of their business’ annual sales revenues in 2023.

The two businesses together employ a dozen workers across four locations — East Providence, Providence, Warwick and South Kingstown — contributing nearly $900,000 in state tax revenue in the last four years, according to the complaint.

State lawmakers sought to finally crack down on flavored vapes this year, codifying the executive order and charging the state taxation division with enforcement and confiscation of flavored vapes, as part of the fiscal 2025 budget. Meanwhile, sales of menthol and tobacco-flavored e-cigarettes can continue, but for the first time will be taxed —  50 cents per milliliter for disposable vapes, or 10% of wholesale for other projects.

The tax component — expected to generate $2.2 million in fiscal 2025, and $3.9 million in fiscal 2026 — would bring Rhode Island on-par with the other five New England states, which already tax vape products. Two other states, New York and New Jersey, ban sales of flavored vapes, while California and Massachusetts ban all flavored e-cigarette and tobacco products, according to the American Academy of Pediatrics.

State health experts have blamed flavored vapes for the prevalence of their use among high school-aged students. New data from a state survey released last week showed one in eight high school students used an e-cigarette at least once in the last 30 days. In the last survey in 2022, one in every 14 student survey participants reported vaping.

While some studies support the claim that limiting flavored tobacco product sales reduces teenage use, other research, including by Brown University’s School of Public Health, found that vapes were not a gateway to cigarette use among teens, and stressed the importance of cessation tools like nicotine gum and vapes to help cigarette smokers quit.

Indeed, Vaporetti co-owner David Kelley wrote in the court complaint that his wife kicked her 27-year smoking habit with the help of vanilla cake-flavored vape products. The couple opened their East Providence vape shop in 2011 to help others quit smoking, Kelley wrote.

To equate sales of flavored vape products with teen usage is unfair, the businesses allege, noting that Rhode Island already bans selling vape products, flavored or not, to customers under 21.

The complaint calls out the state law’s exemption for compassion centers and licensed cultivators, which can sell flavored cannabis or THC vapes — versus those containing nicotine — as “irrational.”

The complaint takes aim at the definition of menthol and tobacco flavors, which could still be sold, as too vague. The vape retailers allege the ban is an unconstitutional “taking” of their revenues, violating the 5th and 14th Amendments to the U.S. Constitution.

“The Act, if enforced, will prove fatal to Plaintiffs’ businesses because they cannot survive the loss of nearly three quarters of their revenue,” the complaint states.

The retailers have asked a federal judge to overturn the ban before it takes effect.

Adam Ramos, the attorney representing Sunshine Vape and Vaporetti, declined to comment when reached by phone on Monday.

The Rhode Island Department of Health, Department of Revenue, and Division of Taxation also declined to comment, citing the pending litigation.

A virtual hearing before U.S. District Court Judge Mary McElroy is scheduled for 11 a.m. on Tuesday, Dec. 10.