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May 22, 2020

Michigan Appeals Court Leaves Whitmer's Flavor Ban on Hold

For the fourth time, a court has ruled against Michigan Governor Gretchen Whitmer in her attempt to impose an emergency ban on flavored vaping products. Michigan vaping businesses will continue to sell flavored e-liquid until a final decision is made in the lawsuit brought against the governor by vaping businesses.

A three-judge panel from the state Court of Appeals unanimously held that Court of Claims Judge Cynthia Stephens was correct to issue an injunction preventing the ban from being enforced while the consolidated lawsuit brought by Marc Slis and 906 Vapor and A Clean Cigarette Corp. was being decided.

The ban was announced last Sept. 4, and was in effect for just a few days before Judge Stephens put it on hold. Some Michigan vape shops had already closed their doors permanently by that time. Others had eliminated some locations or laid off employees.

Whitmer and Michigan Attorney General Dana Nessel immediately appealed the injunction, asking both the Court of Appeals and the state Supreme Court to reverse the injunction. The Supreme Court ruled against the request in late December, voting 6-1 to allow the Court of Appeals to rule first on the validity of the injunction.

It’s unclear whether Whitmer and the MDHHS will pursue the emergency ban, after hearing from two courts that the plaintiffs are likely to win on the merits of their case. The health agency renewed the ban for six more months in March, even though it was unable to enforce the rule while a decision on the lawsuit is pending.

Last year, Whitmer used the emergency flavor ban—the first in the country, beating New York Gov. Andrew Cuomo’s ban by days—as a tool to gain national recognition and earn points within the Democratic Party. This year she has imposed some of the country’s harshest restrictions during the coronavirus pandemic, and has been mentioned as a possible running mate for Democratic presidential candidate Joe Biden.

Court of Appeals Judge Mark Boonstra, in the decision upholding the injunction against Whitmer’s ban, issued a 13-page concurring opinion, attacking the governor’s actions during the coronavirus pandemic as “government overreach,” and chiding the legislature for ceding lawmaking authority (in the form of emergency rules) to the governor and MDHHS.

Earlier this year, Whitmer said that some might be infected with the coronavirus because they use vaping products—fact-free speculation repeated by doctors and politicians around the country in dozens of newspaper articles and TV broadcasts.

“I’ve talked to more than one physician who has observed, and perhaps there’s too little science to know precisely if this is what’s going on, but vaping is a lot more popular in the United States than it is elsewhere,” Whitmer said in a March press conference. “And that…compromises your respiratory system and makes you more susceptible to respiratory illness.”

There is no evidence that vaping affects users’ likelihood of being infected with the SARS-CoV-2 virus, and no evidence that vaping causes infected people to have worse outcomes.

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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