Vape shop owner sues to stop Michigan's flavored vaping ban

Beth LeBlanc
The Detroit News

A Houghton vape shop owner has asked an Upper Peninsula circuit court to stop the state's ban on flavored e-cigarettes.

Marc Slis, owner of 906 Vapor, filed requests in Houghton County Circuit Court Wednesday for a temporary restraining order and preliminary injunction against the ban being implemented by the state Department of Health and Human Services to curb youth vaping. The ban is scheduled to take effect Oct. 2.

In this Aug. 28, 2019, file photo, a man exhales while smoking an e-cigarette in Portland, Maine.

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. He drove more than 500 miles for the hearing, he told lawmakers.

“You won’t just be banning flavors,” Slis said. “You’ll be banning a life-saving industry from this state.”

The flavored vaping ban announced in early September by Gov. Gretchen Whitmer would prohibit the sale of all flavored e-cigarette products, with the exception of tobacco flavored products, to combat a reported increase in youth usage of the product.

“This is a health crisis we’re confronting," Whitmer said at the time. "It would never be permitted if it was cigarettes, but we’re letting these companies target our kids, appeal to our kids and deceive our children."

The Michigan Department of Health and Human Services on Aug. 30 issued a “finding of emergency” that described a “vaping crisis among youth” and recommended adoption of emergency rules.

"The nicotine in e-cigarettes can rewire the brain to crave more of the substance and create a nicotine addiction," the finding said. "Resulting brain changes may have long-lasting effects on attention, learning, and memory."

Since Whitmer’s announcement, President Donald Trump and other governors have announced similar plans. New York last week became the first state to implement its emergency flavored vaping ban.

Whitmer's office deferred comment on the litigation to Attorney General Dana Nessel, but noted the governor "is fully committed to protecting children and public health." Nessel's office had not yet seen the lawsuit Wednesday evening, spokeswoman Kelly Rossman-McKinney said.

Slis is hoping the courts will rule on a requested temporary restraining order as soon as possible, his lawyer Kevin Blair said. 

"Businesses can’t wait until Tuesday to figure what they have to do with these products; they need to know now," Blair said, noting that the ban also prohibits transportation of the product so shop owners wouldn't be able to ship banned inventory out of state after Oct. 2. 

In an affidavit filed with his lawsuit Wednesday, Slis said the state reneged on a 30-day window for shop owners to comply with the law, which he said would require him to get rid of 80% of his inventory. Tobacco-flavored vapor sales have accounted for less than 5% of Slis’s sales since opening in 2015.  

To comply with the ban, 906 Vapor must sell off or destroy all of its vapored product, rearrange its store to distance vaping advertisements from the cash register and get rid of any product with “imagery explicitly or implicitly representing a characterizing flavor,” Slis wrote in his Wednesday filing.

The state fails to consider the effect the ban will have “on the overall Michigan population, and, specifically, adult vapers, but instead focuses on the use of vapor products by minors, which is already illegal,” the lawsuit said.

Slis said the state overstepped its authority by circumventing regular rule-making where there was “no emergency to justify” doing so and asks the judge to find the emergency rules are invalid and “arbitrary and capricious.”

“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,” the lawsuit said.

The state failed to consider other options, such as increasing penalties for those who sold to minors, and failed to consider the viewpoint of those who used vaping products to quit combustible cigarettes. Further, the state did not address the potential for users to resort to the black market, the lawsuit said.

"He’s not against potential solutions," Blair said of Slis. "But just the way that it was done here was rushed and wasn’t done properly.”