Michigan Supreme Court declines to restore ban on flavored nicotine vaping products


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Gov. Gretchen Whitmer’s motion to reinstate a ban on flavored vaping nicotine products has been denied by the Michigan Supreme Court.

The 6-1 decision last week ruled against Whitmer’s request “because the Court is not persuaded that the question presented should be reviewed by this Court before consideration by the Court of Appeals.”

Whitmer issued the emergency rules banning flavored nicotine products on Sept. 18, citing Dr. Joneigh Khaldun, the state’s chief medical executive, who said higher youth vaping rates constituted a public health emergency, especially considering candy-flavored products.

Two vape shop owners sued, and on Oct. 15 Michigan Court of Claims Judge Cynthia Diane Stephens granted a preliminary injunction against the ban because it would cause the shops irreparable harm.

The Court of Appeals upheld the decision on Dec. 9 and continues to review the case.

Justice Stephen Markman dissented, citing the delay “as likely to cause ‘substantial harm’ to the interests of the separation of powers.”

“Because the decision here of the Court of Claims had the effect of entirely halting the implementation of rules enacted by the executive branch, it warrants, in my judgment, the most expeditious, and the most final, review by the highest judicial authority of this state,” Markman said.

Markman said he would grant the bypass application to avoid “government by injunction.”

“This need for expedited review is underscored in the present case by the fact that the issue may well be rendered moot before this Court even has an opportunity to address the issue,” Markman said. “The rules in dispute are effective only until April 2, 2020, and the parties’ briefs are not due in the Court of Appeals until February 3, 2020.”

Zach Pohl, communications director for Whitmer, said that the Supreme Court’s decision was “deeply troubling” and emphasized the importance of the state’s protection of the public health, especially after the Flint Water Crisis.

Pohl said that although the decision would make it harder to protect children from harmful nicotine effects, Whitmer’s administration “remains committed to using every administrative power to keep our kids safe and protect Michigan’s overall public health.”

Local vape shop owners previously told The Center Square they help people stop smoking cigarettes, which kills about 521,000 people per year, according to the Centers for Disease Control and Prevention.

Mark Slis, owner of 906 Vapor in Houghton, told The Center Square he spent 30 years trying to quit smoking cigarettes before he started vaping. Then he quit immediately.

Slis said he welcomed regulations to keep minors from vaping e-cigarettes; he wants adults to be able to use flavors, calling them “the key to quitting.”

Ron Pease, chief executive officer of Grand Rapids-based Mister-E-Liquid, told The Center Square the Supreme Court’s decision reflects that Whitmer’s ban isn’t going to stand.

No one denies there’s an issue with youth vaping, Pease said, but that shouldn’t result in banning flavors and products from legal-aged adults.

“We’re looking forward to hearing what the Appellate Court has to say,” Pease said.
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