State Appeals Court Rules In Favor of Challenge to Governor Whitmer's Flavored Vaping Ban

The 3-0 ruling came down Friday

WWJ News
May 22, 2020 - 1:35 pm

© Dai Sugano, Milwaukee Journal Sentinel

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(WWJ/AP) Governor Whitmer’s flavored vaping ban has taken another legal hit.

The State Appeals Court has let stand an injunction blocking the ban on flavored e-cigarettes by a 3-0 ruling. 

It argued Court of Claims Judge Cynthia Stephens did not “abuse her discretion” by ruling in favor of two businesses that sued following Whitmer’s initial ban. Governor Whitmer signed the Emergency Executive Order instating the ban in September of 2019. 

In October,Judge Stephens temporarily blocked the state's then weeks-old emergency ruling created by Whitmer’s administration.

Judge Stephens argued the rules were ‘procedurally invalid’ and state officials did not justify ‘short-cutting the normal rule-making process.’ She also expressed concern the ban might lead to adults using "more harmful" tobacco products. 

The ban prohibited the sale and advertising of flavored vaped products including mint, menthol and various types of fruit.

Governor Whitmer’s administration argued the products were targeted toward children and teens.

Attorney Kevin Blair, who represented the two businesses that sued the state, told WWJ the shops did not target their products to young people.

Many vape shops feared the ban would force them out of business.

Governor Whitmer filed an appeal against Judge Stephens' injunction shortly afterward, and asked the Michigan Supreme Court in December to overturn the block to her ban on flavored vaping products. 

The Governor's office said the ban was about health and safety.

“The explosive increase in youth vaping is a public health emergency, and we must do everything we can to protect our kids from its harmful effects,” Governor Whitmer said in a statement after Judge Stephens issued the initial injunction.

The Michigan Department of Health and Human Services (MDHHS) reported 73 “confirmed and probable” cases of lung-injury related to vaping, and at least four deaths in the state as of February. 

All of the people who died in Michigan were adults, according to MDHHS.

The CDC reported more than 2,800 cases and 68 deaths from vaping-related complications across the United States.