Judges Temporarily Halt Two More Flavor Bans

Vape shops are back in business selling flavored products in two more states after judges temporarily halted vape bans in Oregon and Montana. That makes the vaping industry four for four in lawsuits seeking temporary pauses on state bans.

All of the bans issued so far have been implemented by executive actions, using emergency powers. Like legislators, courts have appeared unimpressed by examples of unchecked executive power, and have pushed back.

The Oregon Court of Appeals on Thursday issued a temporary stay of Gov. Kate Brown’s six-month ban on flavored nicotine vaping products, but not on the ban of flavored cannabis vapes. (The two kinds of products are regulated by different state agencies.)

“Petitioners assert, as a result of the rule, they, along with number other similarly situated businesses, will be forced to close within weeks,” appellate Commissioner Theresa Kidd noted, according to The Oregonian. The Oregon lawsuit against the governor was brought by two state vape businesses and the Vapor Technology Association (VTA).

Friday in Montana, District Judge Jennifer Lint issued a temporary restraining order preventing the state from enforcing its ban for 12 days. She has scheduled an Oct. 30 hearing to decide whether to continue the stay pending a final decision on the case.

Three Montana vape shops and the Montana Smokefree Association filed the suit Thursday.

“We’re just fighting a governor who’s trying to take away our liberties with the stroke of a pen,” vape shop owner Ron Marshall told MTN News. “So far, so good.”

Last week, Michigan Court of Claims Judge Cynthia Stephens issued an injunction putting Gov. Gretchen Whitmer’s flavor ban on hold. And more than two weeks ago, a panel of judges in New York granted a temporary restraining order preventing the state from enforcing Gov. Andrew Cuomo’s flavor ban.

In Michigan, the governor and attorney general are seeking permission to appeal the injunction issued by Judge Stephens. New York advocates will know soon if the court chooses to issue an injunction lifting the ban while the case proceeds to trial.

On Friday, a Suffolk County Superior Court judge heard a motion to temporarily halt Massachusetts Gov. Charlie Baker’s ban on all vaping product sales. Judge Douglas Wilkins said he will issue a ruling Monday morning, according to Law360 reporter Chris Villani. The state has asked for a stay (putting the injunction on hold) pending an immediate appeal if the judge lifts the ban.

Boston University public health professor Dr. Michael Siegel testified for the vape industry plaintiffs, telling the court that the ban “significantly harms the public health.”

"I do not see any rational basis for banning nicotine-containing e-liquid cigarettes sold in retail stores,” Siegel testified, according to Villani.

Legal actions challenging the flavor bans in Washington and Rhode Island are possible soon.