State, federal judges won't immediately halt flavored vape ban

Beth LeBlanc
The Detroit News

A state judge denied an Upper Peninsula resident's request to immediately halt Gov. Gretchen Whitmer’s ban on flavored vaping, an emergency rule scheduled to take effect Wednesday.

But Court of Claims Judge Cynthia Stephens plans to hear arguments requesting a preliminary injunction on the ban as soon as Tuesday afternoon in Petoskey. A federal judge also refused to act quickly in a second lawsuit.

Marc Slis, owner of the 906 Vapor vape shop in Houghton, filed the lawsuit last week against Whitmer and the state Department of Health and Human Services, which announced the rules in early September to combat increases in youth usage.

In this Tuesday, April 10, 2018 file photo, Marshfield High School Principal Robert Keuther displays vaping devices that were confiscated from students in such places as restrooms or hallways at the school in Marshfield, Mass.

Slis asked last week for a temporary restraining order, which would immediately stop the implementation of the ban, and a preliminary injunction, which would stall the prohibition for still longer.

Slis’ case was moved by Attorney General Dana Nessel’s office from a Houghton County Circuit Court judge to the Michigan Court of Claims, where lawsuits against the state typically are handled.

On Monday, Nessel’s office asked the judge, an appointee of Democratic former Gov. Jennifer Granholm, to deny the motion for preliminary injunction, noting the dangers of sweet-flavored e-cigarette products marketed toward children.

“Cotton Candy, Bubble Gum, Gummy Bear. Any adult knows that if you want to get a child’s attention, there is no enticement like candy,” Nessel’s team wrote Monday.

The rules are “entirely appropriate and justified” considering the emergence of vaping as a “public health epidemic,” the filing said.

“Requiring a vapor shop to take a time-out from selling flavored nicotine vapor products until those products can be more comprehensively reviewed, studied and regulated does not warrant the extraordinary issuance of a temporary restraining order,” the document said.

State leaders should be more focused on educating kids about the risks of underage usage, but instead they've left e-cigarette businesses with an ultimatum, vaping business group Defend MI Rights Coalition said.

"Hundreds of Michigan small business owners are now confronted with a difficult decision: shutting the doors of their business or be charged with a misdemeanor," said Andrea Bitely, a spokeswoman for the group. "Those who use vapor products also have a choice: whether or not to buy black market products."

Slis, who testified at a House committee hearing on the ban Sept. 12, said e-cigarettes helped him to quit combustible cigarettes after 41 years of smoking, 30 of which he spent unsuccessfully trying to quit.

Slis argued that the rules would put him out of business, take away a valid smoking cessation tool and fail to take into account other options, such as increasing penalties for those who sold to minors.

“Even if the circumstances constitute a true emergency, the alleged threat only affects a small subgroup of the general public, which is insufficient, as a matter of law, to justify deviating from the usual (Administrative Procedures Act) procedural safeguards,” Slis’ lawsuit said.

Mister E-Liquid, an e-cigarette manufacturer, retailer and wholesaler based in Grand Rapids, filed a second suit on Friday in U.S. District Court for the Western District of Michigan, but was also denied a temporary restraining order.

The suit alleges the ban violates the U.S. Constitution's commerce clause by barring it and other Michigan e-cigarette companies from selling to consumers in other states.

U.S. District Judge Robert Jonker noted the filing of the lawsuit just before 5 p.m. Friday created "a nearly impossible timeframe" for Whitmer's office to respond, especially since the governor was reviewing the state budget over the weekend.

Jonker said he would consider the request for a preliminary injunction, but a decision would likely not be reached before the 14-day time frame allowed for the state's response.

"Even when economic loss is potentially significant, it is not normally the kind of irreparable harm that supports emergent relief, let alone an ex parte (temporary restraining order," wrote Jonker, an appointee of Republican former President George W. Bush.