Michigan appeals court sides with vape shop, against flavored vaping ban

vaping sign

Flavored vaping products were marketed to entice young vapers into addictive habits, the Michigan Department of Health and Human Services had argued in declaring a public health emergency last year. (Bridge photo by Robin Erb)

A court ruling Thursday has cast into further doubt Michigan’s 2019 emergency rules against flavored vaping products.

A three-judge panel of the Michigan Court of Appeals upheld a Court of Claims preliminary injunction against Gov. Gretchen Whitmer’s September public emergency that banned flavored vaping products — products that Whitmer and the state’s health department argued lured young people into unhealthy, addictive habits. 

The appeals court's unanimous decision means the state’s emergency order remains unenforceable, for now, as litigation over its validity proceeds. Whether the state will press ahead in the courts to enforce the ban is unclear. The Michigan Department of Health and Human Services deferred questions from Bridge Magazine to the Michigan Attorney General’s office. 

The Attorney General’s office did not immediately respond to requests for comment Thursday.

In a harshly worded, 13-page concurring opinion attached to the ruling, Judge Mark Boonstra called Gov. Gretchen Whitmer’s order “government overreach” and found a way to lodge criticism of the governor’s response to the coronavirus outbreak, which was not a part of the vaping litigation.

Boonstra, appointed by Republican Gov. Rick Snyder, said he was writing separately “because sometimes we as Americans need a wake-up call.”

Boonstra tied the vaping ban to the Democrat governor’s executive orders during this year’s COVID-19 pandemic, writing “you might ask, what does COVID have to do with vaping? Well, maybe nothing. Our Governor has herself linked the two, however.”

“Liberty” is similarly threatened by a pandemic lockdown and the vaping products ban, Boonstra wrote: “As the adage goes, ‘give them an inch and they’ll take a mile.’ Amid the COVID-19 pandemic, that adage has new meaning. It even applies to vaping.”

In September — as the U.S. Centers for Disease Control and Prevention reported a rash of vaping-related illnesses — Whitmer proposed banning flavoring in e-cigarettes and other vaping devices in the state. (Public health officials ultimately linked those illnesses, including some deadly cases, to a Vitamin E acetate additive.)

Whitmer’s public health emergency order made Michigan the first state in the nation to ban flavored nicotine vaping products. Other states in the following weeks did the same.

At his Upper Peninsula vape shop in Houghton, Marc Slis, a plaintiff in the lawsuit, said Thursday he was relieved by the ruling.

Marc Slis, owner of 906 Vape in the Upper Peninsula, began his fight against the state in 2019. He said his adult customers used flavored vaping products to replace traditional cigarettes and other combustible tobacco. (Bridge photo by Adam Johnson)

The owner of 906 Vapor became the face of businesses who pushed back against the September public health order. He and others argued that they would lose their shops as consumers turned to online sales. Further, the ban — he argued — backfired as a public health effort because it would drive adult vaping consumers back to combustible tobacco, such as cigarettes.

Slis had resumed selling his products after Court of Claims Judge Cynthia Diane Stephens granted a preliminary injunction in November against the state ban.

 

While Whitmer’s order may never take effect, it appears to have contributed to extraordinary restrictions on the vaping industry. 

Facing mounting public pressure, the major producer of flavored vaping products, JUUL, announced in October it would stop selling flavored vaping products. Several states passed laws restricting flavored tobacco sales and federal law signed by President Trump in the closing days of 2019 bans sales of nicotine vaping products to anyone under 21. 

In Houghton, Slis has been selling products curbside only because of the COVID-19 pandemic. On Thursday, he was erecting polyacrylic sneeze shields to reopen for in-store foot traffic this holiday weekend.

“I’m extremely tired from this past 9 months,” he said. “This issue and this ruling was never far from my mind. It was my livelihood and the lives of my customers.” 

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Comments

Soccer Mom
Thu, 05/21/2020 - 7:20pm

Why didn't the legislature ban the products?

B
Thu, 05/21/2020 - 11:00pm

Probably for harm reduction purposes. A lot of people began vaping to get away from the taste of tobacco. If they can only vape a tobacco flavor they would rather just have the real thing regardless of the additional damage to their health. It would also lead to a huge increase in black market flavored vape products. Its similar to the way that states that prohibit marijuana use are having huge problems with black market THC. Recently black market products have been killing people in the US drug dealers were adding canola oil into the THC they buy illegally from overseas so they can double their profit. Unfortunately they didn’t understand at the time was that canola oil after being vaporized and inhaled cools down in your lungs and builds up causing breathing problems and infections that have already killed people. In states with legal marijuana use there’s far less stuff like that happening. I believe people are worried that the exact same thing will happen if flavored nicotine liquid is banned. It would also result in people driving across state lines to buy flavored nicotine products leading to a drop in tax revenue for the state. It’s usually a lot safer to tax and regulate than ban.

there are huge problems with people getting sick from vaping THC oil that drug dealers had been cutting with canola oil to make more money. That canola oil thickens up in your lungs making it hard to breathe and eventually leads to an infection but states in which THC is legal and people can buy products that have undergone testing, there’s only a fraction of the number of black market products. People are worried the same thing will happen with flavored nicotine liquid. When the demand for flavored nicotine liquid goes up, black market sellers will start trying to add flavoring at home leading to more people getting sick and dying. It would also lead to people driving across state lines to buy flavored vape products causing a drop in tax revenue that could go back into the state.

Bee
Thu, 05/21/2020 - 10:30pm

That’s great to hear. Flavored vape products aren’t going to cause teens who didn’t already plan on vaping, to vape. I’m sure the data won’t show a significant drop in teen use in states that decide to prohibit flavored vape products. Much of the new legislation regarding vaping is a reaction to the lung injury/EVALI  issue, even though it isn’t caused by nicotine vape products. Drug dealers were adding canola oil and vitamin E oil to the THC liquid they were illegally selling to make more money. Unfortunately, what those people didn’t understand at the time was the fact that when heated, the cooking oil aerosolizes like the propylene glycol that’s usually usually it ed as a base in vape liquid but unlike the propylene glycol, when it cools down in your lungs, it thickens back up into a grease clogs and builds up in your bronchi. It can also lead to an infection which is usually what ended up killing people. It’s more common in states that prohibit marijuana use but it’s still happening everywhere. It wouldn’t really matter if it weren’t for the fact that a huge number of vape users have gone back to smoking because Few media outlets specified that it was black market THC products making people sick. I did the same thing for a few days before having my lungs checked by my doctor. After 9 years there’s nothing abnormal about my respiratory health. If nicotine products were causing the lung injuries it should have happened to me years ago but I don’t use THC due to anxiety.

Katie L Williams
Sat, 05/23/2020 - 6:31pm

Vaping bans are un-American! Banning something because the government refuses to enforce age restrictions more adequately? Why not only sell it online, where a government ID can be validated, and in smoke shops, where the owner can buy the little computer that bars and nightclubs have, to check ID...how ridiculous! Ban the healthier option? How many people will go back to cigarettes? The only thing vaping is killing is big tobacco! Don't believe the propaganda...and kudos to the judges on this panel, for not being swayed by it, and for being honest with themselves...we need some public figures, and lawyers, willing to speak up for our constitutional rights!

Mk
Sat, 05/23/2020 - 11:14pm

Almost all the people that vape think it’s big tobacco that’s out to get the vapes banned. It’s actually big pharma because vapes have cut into the billion dollar pharma pills, patches and gums market. Something pharma didn’t see coming when then spent billions getting smoking bans enacted across the country. So they figure they’ll just get vapes banned everywhere like they did cigarettes. Just watch as vapes are added to smoking bans everywhere.