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October 19, 2019

Judges Temporarily Halt Two More Flavor Bans

Vape shops are back in business selling flavored products in two more states after judges halted bans temporarily 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.

Smokers created vaping without any help from the tobacco industry or anti-smoking crusaders, and vapers have the right to keep innovating to help themselves. My goal is to provide clear, honest information about the challenges vaping faces from lawmakers, regulators, and brokers of disinformation. I recently joined the CASAA board, but my opinions aren’t necessarily CASAA’s, and vice versa. You can find me on Twitter @whycherrywhy


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Jim McDonaldKristin L HahnlenEnzoRightlyRed Recent comment authors
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There’s no nicotine or tobacco in my ejuice, I’m over 55 years old. What gives the right of any agency to declare it’s a tobacco product subject to rules? The fallacy arises in calling a vaporizer that contains no tobacco or nicotine a tobacco product. They claim to allow tobacco flavors are okay if they ban vaping flavors yet tobacco flavors are flavors like berry crunch & minty and not one of those contain any nicotine or tobacco. Tobacco flavor is flavor and contains no nicotine or tobacco so where’s the logic in tobacco flavor is safer than any other… Read more »


12years now the vaping industry has policed itself without government interaction. 12 years they’ve had to study health of vaping indoors, outdoors, even 2nd hand mist… They’ve done nothing but sat on their chairs and watched while not a single legal nicotine device has ever caused harm. Yet when THC laced carts are brought to market in various states with backing of politicians for taxation, we see huge injuries and deaths. Everything good the government touches turns to crap. Look at our usps mail service. Name one thing the government has its hands on that turned out profitable and benefits… Read more »


If they were to ban flavored e liquid because “it appeals to youth” then every flavored alcohol should be banned too. That means mixed drinks in bars as well. You got to drink beer, malt liquor or scotch w/ water and that’s it. Mixed drinks that taste like juice and flavored malt drinks like white claw appeal to youth as well. The whole reason that these people want to ban e liquid flavors is the reason that they want to ban high capacity magazines for firearms. It doesn’t actually make anyone safer but it gives them a way to say… Read more »

Kristin L Hahnlen
Kristin L Hahnlen

Come-on Washington State, let’s get rid of the ban too!!!!

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