Appeals court upholds pause on Governor’s proposed vaping ban

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Lansing, Mich. (WLNS) — A Michigan Court of Appeals has ruled against Gov. Whitmer’s imposition of a temporary injunction against the sale of flavored vaping products.

In the Court of Appeals ruling, the court upheld the opinion of the Court of Claims judge Cynthia Stevens who overturned Whitmer’s temporary injunction on a vape shop in the Upper Peninsula.

That ruling against Whitmer in October 2019 stopped the state from enforcing its emergency ban on flavored vape products.

Stephens said “there is evidence that if flavored vaping products are prohibited, adults will return to using more harmful combustible tobacco products,” the Associated Press reported.

The topic of flavored vaping products gained national attention in September 2019 when reports surfaced that the makers of candy-flavored products created deceptive ads to hook children.

As a response, Gov. Whitmer issued a state-wide ban on flavored vaping products in Oct. 2019. Whitmer’s critics said the emergency rules circumvented Michigan’s typical regulatory process.

Michigan was the first state to implement the vaping ban, which went into effect on Oct 2. Other states including California, Massachusetts, Montana, New York, Oregon, Rhode Island, Utah and Washington joined Michigan in banning vapes. Gov. Whitmer faced criticism from vape shop owners who said they would lose business because of the ban.

Whitmer said vaping-related lung injuries and deaths among adolescents is a public health problem not only within the state of Michigan, but also across the country.

The first death due to a vaping-related lung injury in Michigan was confirmed by the Michigan Department of Health and Human Services Oct 4.

In a series of what seemed to be a back-and-forth injunction war between Gov. Whitmer and the Court of Claims, the Court of Appeals finally came to a decision today. The full opinion can be viewed online here.

V. CONCLUSION We hold that the DHHS and the Governor are entitled to due deference with regard to the finding of an emergency under MCL 24.248(1), but not complete capitulation, and the Court of Claims ultimately did not abuse its discretion by issuing the preliminary injunction on the basis of the evidence presented by the parties. The likelihood of success on the merits, whether plaintiffs would suffer irreparable harm, and the balancing of the harms favored the action by the Court of Claims to issue the preliminary injunction, even if the factor regarding the public interest did not. We hold that the Court of Claims did not abuse its discretion by granting plaintiffs’ motions for a preliminary injunction.28

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