State court halts Whitmer's flavored vaping ban

Lansing — A state judge has granted a preliminary injunction to vape shop owners who opposed Gov. Gretchen Whitmer’s flavored vaping ban, temporarily stopping the state from enforcing emergency rules banning the sale of the products.

The facts of the case weigh “in favor of granting relief” and banned the state from enforcing its rules “until further order of this court," Michigan Court of Claims Judge Cynthia Stephens said Tuesday.

The order, which comes nearly two weeks after the state’s rules went into effect, was immediately countered by Whitmer, who promised to seek an immediate stay and request a "quick and final ruling" from the Michigan Supreme Court. 

“This decision is wrong," the governor said in a statement. "It misreads the law and sets a dangerous precedent of a court second-guessing the expert judgment of public health officials dealing with a crisis."

Attorney General Dana Nesse, a fellow Democrat, said her office remained "resolute" in its support and defense of the ban and said the health risk to youth "demands immediate action."

Whitmer's administration had initiated the rules to combat an uptick in youth e-cigarette usage. Michigan was the first to announce such an initiative, but several other states and President Donald Trump announced similar initiatives soon afterward. 

"Enough is enough," Whitmer said Tuesday. "Our kids deserve leaders who will fight to protect them.”

In her Tuesday decision, Stephens noted that 906 Vapor, an Upper Peninsula business that sued the state last month over the ban, would not be able to resume business at the end of the emergency order and its customers had already begun to purchase from out-of-state vendors. Another business called “A Clean Cigarette” had shut one shop and had more than $2 million of unusable product in the wake of the new rules. 

A Clean Cigarette would suffer “a unique loss to its business and to its branding” should the emergency rules be enforced, and 906 Vapor owner Marc Slis, who argued he would lose his entire business, would suffer “irreparable harm,” said Stephens, an appointee of Democratic former Gov. Jennifer Granholm who has been subsequently re-elected.

But Stephens pushed back against the vape shop owners’ argument that the rules had no public health value. Still, she said the businesses had a “likelihood of success” on arguments that there was “no genuine emergency.”

The information the state cited supporting its emergency declaration was available “at the latest in February 2019,” yet the emergency declaration wasn’t made until August, Stephens said. 

“The court finds that defendants’ lengthy period of inaction, combined with the old data, undermines the emergency declaration in this case,” Stephens wrote.

“Indeed, an agency cannot create an emergency by way of its own failure to act."

Defend MI Rights Coalition, a small business group opposing the ban, applauded Stephens' decision, calling the ban "an overreach of government into the lives of adults."

"We are ready to work through the normal legislative process to arrive at a balanced solution that protects the rights of adults to use vaping products as an alternative to combustible cigarettes, and at the same time, get these products out of the children’s hands," said coalition spokeswoman Andrea Bitely.

Whitmer announced the ban on flavored vaping products in Michigan early last month, following an uptick in presumed vaping-related illnesses.

The emergency rules banning the flavors were issued after Chief Medical Executive Joneigh Khaldun declared a public health emergency over the increase in youth e-cigarette use.

The ban went into place Oct. 1 but is being challenged in state and federal courts by Michigan vape shop owners.

Khaldun called Stephens' Tuesday decision a threat to the public health of Michigan residents. 

"There is no question that youth vaping is a public health crisis," she said. "The data is overwhelming, and we’re getting new information every day that reinforces that the governor and MDHHS were correct to take swift action to protect our kids from the harmful effects of vaping.”

Federal officials have acknowledged that THC-containing e-cigarette products have played a role in the vaping-related lung injury “outbreak” that, as of last week, had led to 1,299 cases, including 26 deaths. 

Since August, 35 lung injury cases believed to be vaping-related, including one death, have been reported in Michigan, according to the Department of Health and Human Services. About 80% of those reporting vaping-related lung illnesses said they were using THC-containing products, according to the state, and they ranged in age from 16 to 67 years old.

Vapers have protested the changes, noting Michigan just passed a law making it illegal for children to use vaping products and arguing the ban could have an impact on those who use e-cigarettes as a relatively healthier alternative to combustible cigarettes.

Vapers also have argued an uptick in vaping-related lung sicknesses were not tied to flavored nicotine devices, but to ones containing various forms of THC.

eleblanc@detroitnews.com