Judge puts Michigan’s ban on flavored nicotine vaping on hold

A Michigan Court of Claims judge on Tuesday temporarily halted Michigan’s ban on flavored nicotine vaping products.

Judge Cynthia Stephens granted an injunction requested by vape shop owners, who argue in a lawsuit that Gov. Gretchen Whitmer overstepped her authority by banning flavored nicotine vaping products without the approval of state lawmakers. The ban went into effect on Oct. 2.

The judge’s decision means the state can't enforce the ban, so vaping retailers can resume selling their nicotine products. There are more than 400,000 vapers in the state.

Stevens said she granted the injunction because the ban is likely to cause irreparable damage to the plaintiffs — vape retail franchise A Clean Cigarette and 906 Vapor in Houghton, a retailer owned by Marc Slis.

"In addition to losing customers, Slis substantiated his claim that he will lose his entire business because of the emergency rules," Stevens wrote, adding that the ban also "will destroy" A Clean Cigarette's franchise, which already closed a store.

The injunction is valid for up to six months. In essence, the ban has been placed on hold until the court can weigh the merits of the case.

"We're pleased with the results and look forward to a full trial on the merits," plaintiffs' attorney Kevin M. Blair, of Lansing-based Honigman LLP, tells Metro Times.

Michigan Attorney General Dana Nessel's office said it is committed to defending the ban.

“The Michigan Department of the Attorney General is resolute in our efforts on behalf of Governor Whitmer and the Michigan Department of Health & Human Services to protect the health of Michigan’s children," Nessel's spokeswoman Kelly Rossman-McKinney tells Metro Times in an email. "The youth vaping crisis is an urgent public health matter that demands immediate action. To that end we are preparing to seek an immediate stay and will seek leave to appeal the judge’s decision directly to the Supreme Court.”

On Oct. 3, New York’s ban on flavored nicotine products was temporarily blocked by a state appeals court. Several other states have banned flavored nicotine vaping products in the midst of what increasingly appears to be an unrelated lung illness primarily linked to tainted, black market cannabis vaping products.

In September, Whitmer became the first governor to announce a ban. Whitmer bypassed public hearings and legislative approval by filing emergency orders on Sept. 18, claiming the rapid rise of youth vaping constitutes a public health emergency. As many as a quarter of high school seniors reported vaping nicotine in the past month, according to the University of Michigan's Monitoring the Future survey in 2018. But cigarette smoking among teens also is down.

“There is no question that youth vaping is a public health emergency,” Dr. Joneigh Khaldun, chief medical executive for the state of Michigan, testified Wednesday.

Slis, owner of 906 Vapor in Houghton, testified Tuesday that the ban, if it continues, likely will force him and other similar businesses to close and file for bankruptcy. He added that vaping helped him and many others quit smoking cigarettes, which generally are considered far more hazardous.

Whitmer's administration has come under fire for failing to be more forthcoming about the link between tainted cannabis cartridges and a lung illness that has sickened more than 1,000 people and killed another 19 across the country. In Michigan, more than 30 residents have come down with the illness, and one died last week.

Khaldun testified that youth vaping — not the lung illnesses — was the impetus for the ban.

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