Whitmer urges high court to revive flavored vaping ban

Beth LeBlanc
The Detroit News

Lansing — Gov. Gretchen Whitmer is appealing to both the state Court of Appeals and the Michigan Supreme Court to reinstate an emergency flavored vaping ban, arguing that a lower court’s ruling halting the ban sets a dangerous precedent.

The “magnitude” of the lower court’s ruling “cries out for immediate action” by the state’s highest court, Whitmer's legal team argued in its request to bypass the Court of Appeals for the Michigan Supreme Court.

Michigan Gov. Gretchen Whitmer discusses the latest budget stalemate with reporters on Sept. 12, 2019.

“After seeing how the Flint water crisis was mishandled, it’s more important than ever that we listen to our public health officials when they make recommendations to protect our citizens,” Whitmer said in a Friday statement.

The governor is hoping the Supreme Court will skip the normal appeals process and hear the case instead of the state Court of Appeals. Michigan's highest court rarely intervenes before the appeals court has ruled on a case.

The governor's appeal was a source of frustration for Marc Slis, an Upper Peninsula vape shop owner who is suing the state. Slis said he's hopeful the state will stop providing "misinformation" and instead work with shop owners to develop "sensible regulation."

"I’m frustrated and angry that once again myself and my fellow shop owners are being painted as being out to harm our youth when in reality we are here to help people save their lives and stop smoking," he said. 

Whitmer's appeal to the Supreme Court comes after Court of Claims Judge Cynthia Stephens ruled last week that the state should halt its emergency flavored vaping ban because the vape shop owners suing to stop the rules had a high likelihood of success. The shop owners also would suffer irreparable harm if the ban remained in place during the court case, Stephens said.

The Whitmer administration had begun implementing the rules in early October 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.

Stephens ruled last week that the department waited too long to issue the emergency rules, undermining the determination that an emergency existed. 

The ruling set a dangerous precedent regarding the state’s rule-making authority and the timeline when they must issue emergency rules, according to the filing by Attorney General Dana Nessel's office. 

Stephens ruling misunderstood the law, compromised the state’s public health and damaged a “core and critical power of the executive branch,” Nessel's office said.

“Whether the information that DHHS relied on to declare the emergency was months, days or hours old, the public health crisis exists today — and there are no signs of it flagging,” the Attorney General's office argued for Whitmer.

Further, the vape shop owners who filed the lawsuit are unlikely to succeed because the department met all of the procedural benchmarks required by law before issuing the emergency rules, according to the Nessel office filing.

“Michigan has demonstrated much more than a rational basis to believe that the benefits of the rules outweigh any burdens that they may impose,” the filing said.

Stephens found last week that the state used data from February to declare the emergency in August, a “period of inaction” that called into question whether there was a “genuine emergency.”

“…An agency cannot create an emergency by way of its own failure to act,” ruled Stephens, who was appointed by Democratic Gov. Jennifer Granholm.

The state had cited data showing an increase in youth vaping to support its declaration of an emergency. In addition, federal and state officials have warned of lung-related illnesses linked to e-cigarettes.

Federal officials have acknowledged that THC-containing e-cigarette products have played a role in the vaping-related lung injury “outbreak” that, as of Thursday, had led to 1,604 cases, including 34 deaths. One Michigan man has died

In this Dec. 22, 2018 file photo, a woman takes a puff from a cannabis vape pen in Los Angeles.

As of Friday, 44 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 81% 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.

Vaping advocates have argued Whitmer’s emergency ban will harm people using e-cigarettes to quit combustible cigarettes and is a premature response to youth usage since the Legislature’ passed a law earlier this year making it illegal for children to use vaping products.