Updated, 5:40 p.m. with Whitmer’s appeal, additional comments
A state Court of Claims judge has determined that, at least for now, a statewide ban on flavored vaping products can’t be enforced. Gov. Gretchen Whitmer said on Tuesday evening that she plans to ask for an immediate stay and go directly to the Michigan Supreme Court.*
Judge Cynthia Stevens weighed multiple factors and ultimately determined that the plaintiffs, two Michigan vape shops, “have carried their burden of presenting a compelling case for the issuance of preliminary relief.”
The Tuesday order and opinion essentially means that the rules handed down by the state Department of Health and Human Services (DHHS) at the direction of Whitmer don’t exist, pending a trial and businesses will be able to carry on.
“This decision is wrong. It misreads the law and sets a dangerous precedent of a court second-guessing the expert judgment of public health officials dealing with a crisis,” said Whitmer in a statement. “The explosive increase in youth vaping is a public health emergency, and we must do everything we can to protect our kids from its harmful effects. I plan to seek an immediate stay and go directly to the Supreme Court to request a quick and final ruling. I took bold action last month to protect public health, and several states and the White House have followed Michigan’s lead because they know how urgent this is. Enough is enough. Our kids deserve leaders who will fight to protect them. That’s exactly what I’m doing today.”*
Attorney General Dana Nessel backed the governor up in a statement.
“We are resolute in our efforts on behalf of Governor Whitmer and the Michigan Department of Health and Human Services to protect the health of Michigan’s children,” she said. “The youth vaping crisis is an urgent public health matter that demands immediate action. To that end, we are preparing to seek an immediate stay and will seek leave to appeal the judge’s decision directly to the Supreme Court.”*
The proposed ban garnered national attention for Whitmer. President Donald Trump discussed a similar national ban one week later.
The Court of Claims late last month denied a temporary restraining order just days before the rules took effect.
Whitmer and the DHHS issued the ban in early September by declaring a public health emergency tied to youth vaping, saying that flavored products were being marketed to children. Critics of the proposed ban note that Michigan already has made it illegal to sell those products to minors and that e-cigarettes serve as a “harm-reduction” tool and help adults quit combustible cigarettes.
Stevens, in her opinion, wrote that she believes DHHS has circumvented “normal rule-making procedures which afford the public meaningful opportunities to be heard.”
An attorney for the plaintiffs, Kevin Blair with the Honigman law firm, said Tuesday that he’s “pleased with the results and we look forward to a full trial on the merits.”