Lawsuit aims to stop flavored vaping ban in Michigan, saying Gov. Whitmer overstepped her authority

Gov. Gretchen Whitmer overstepped her authority by banning flavored nicotine vaping products without the approval of state lawmakers, an Upper Peninsula vape shop owner argues in a lawsuit filed Wednesday.

The suit seeks to stop the state from enforcing the ban, which goes into effect Tuesday.

Mark Slis, the owner of 906 Vapor in Houghton, is asking a Houghton County Circuit Court judge to temporarily halt the ban to give his lawyers a chance to argue the case.

Whitmer filed emergency orders on Sept. 18 to prohibit the sale of flavored nicotine products, claiming the rapid rise of youth vaping constitutes a public health emergency. As many as a quarter of high school seniors have reported vaping nicotine, according to a recent study.

“I’m proud that Michigan has been a national leader in protecting our kids from the harmful effects of vaping,” Whitmer said at the time. “For too long, companies have gotten our kids hooked on nicotine by marketing candy-flavored vaping products as safe. That ends today. This bold action will protect our kids and our overall public health.”

Since then, Massachusetts has banned nicotine vape sales, and New York banned flavored nicotine sales.

Slis and his attorneys argue that youth vaping is not a sufficient reason to bypass legislative approval, which would require public hearings.

Additional lawsuits are expected to be filed in the next few days in hopes of reversing the ban.

Opponents of the ban note that Michigan didn’t prohibit the sale of vaping products to minors until this month, so the state failed to give the new law time to curb youth vaping, they argue.

And Slis and other vaping advocates say the ban will do more harm than good. Many people turned to vaping to quick smoking cigarettes, which are generally considered far more hazardous than flavored nicotine liquid. In fact, one of every two long-term smokers die from cigarette-related causes. The long-term impact of vaping is not yet known.

"Unfortunately the message that has been conveyed by many health authorities is that vaping — in general – is responsible for the illnesses. Nothing could be further from The truth," Kenneth Warner, professor emeritus and dean emeritus at the University of Michigan School of Public Health, tells Metro Times. "A great concern is that misunderstanding the situation will get adult smokers who have quit smoking by vaping to give up vaping and go back to smoking. And it may discourage some smokers from trying vaping to quit smoking. Smoking, with the 7,000 chemicals found in cigarette smoke, is dramatically more dangerous than vaping. So these people would be exposing themselves to a greatly elevated risk."

Critics of the ban also say Whitmer is ignoring the real health emergency – tainted cannabis cartridges sold on the black market. Researchers are increasingly focusing on vitamin E acetate, a thickener that is used to cut cannabis oil.

The Michigan Department of Health and Human Services has identified 15 confirmed or probable cases of several lung illness and is investigating an additional 14 possible cases.

There is a loophole for vapers: Whitmer only banned flavored nicotine liquid. That means people may still buy vape liquids and pods that are free of nicotine. And for about $5, they can buy a flavorless nicotine packet and dump it into a bottle of vape liquid.

Michigan's ban no longer prohibits possession of flavored nicotine; it only prohibits the sale of it.
Michigan Attorney General Dana Nessel has pledged to defend the vaping ban in court.

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