Whitmer asks Supreme Court to lift vape ban order

Vaping sign | Creative Commons

Gov. Gretchen Whitmer has followed through on her plans to file with the state Supreme Court over her vaping ban, her office announced Friday.

The emergency application seeks to lift the Oct. 15 court order blocking the enforcement of Whitmer’s flavored nicotine vape ban, in which a Court of Claims judge questioned the legitimacy of the state Department of Health and Human Services’ (DHHS) finding that rising trends in youth vaping constitute as a “public health emergency.”

Judge halts Michigan flavored vaping ban, Whitmer seeks Supreme Court ruling

That DHHS finding had been the backbone of Whitmer’s emergency rules banning vaping products in September. Now, Whitmer is filing for emergency leave with the state Court of Appeals to reinstate the vaping ban and have the Supreme Court take up the case.

“After seeing how the Flint water crisis was mishandled, it’s more important than ever that we listen to our public health officials when they make recommendations to protect our citizens,” Whitmer said in the statement. “… I’m hopeful that the Supreme Court will immediately take up this case so we can ensure our kids’ safety.” 

Friday’s filing states that last week’s Court of Claims ruling harms the ability of the governor and DHHS to “effectively combat a recognized public health emergency currently afflicting this state” by preventing Whitmer’s emergency rules from being enforced. It also describes the ruling as “dangerous and contrary to law” by allowing a court to second-guess “the expert judgment of public health officials …”

Julie Brixie

In a press release following Whitmer’s announcement, state Rep. Julie Brixie (D-Meridian Twp.) praised the state’s filings.

“I applaud the actions of Governor Whitmer and Attorney General Nessel today and will continue to do all I can to support these efforts in the Legislature,” Brixie said in the statement. “The governor’s ban on flavored vaping products was a bold, necessary step to address the predatory advertising that has caused a vaping epidemic among our youth.”

There have been more than 1,600 cases of e-cigarette or vaping-related lung injury and 34 deaths in the country as of Tuesday, according to national statistics from the U.S. Centers for Disease Control and Prevention.

DHHS spokesperson Lynn Sutfin wrote in an email Friday that there are currently 44 confirmed and probable vaping-related lung injury cases in Michigan.

Michigan’s first known death from a vaping-related lung injury was announced by the state Department of Health and Human Services (DHHS) on Oct. 4.

State reports first death linked to vaping

Bills ban vape ingredient introduced

Meanwhile, legislation to ban a risky diluting agent found in many vaping products was introduced in the state House.

House Bills 5159-5161, introduced Thursday by state Reps. Abdullah Hammoud (D-Dearborn), Frank Liberati (D-Allen Park) and Joe Bellino (R-Monroe), would prohibit the sale of marijuana, nicotine and vaping products containing vitamin E acetate from being sold in Michigan.

Sutfin with DHHS said the department is currently reviewing the bills and has not yet taken a position on them.

Vitamin E acetate is often used to thin the THC oil ingested through vaping products. The chemical has been linked to health concerns, although its precise role in the injuries is not yet fully clear.

House Bills 5159 and 5160, introduced by Hammoud and Liberati, respectively, both aim to prohibit the processing and sale of marijuana and marijuana products that contain vitamin E acetate. Hammoud’s bill would revise the Medical Marihuana Facilities Licensing Act, while Liberati’s bill would revise the Michigan Regulation and Taxation of Marihuana Act to do so.

Rep. Abdullah Hammoud | House Democrats photo

House Bill 5161, sponsored by Bellino, would prohibit the sale of vapor products or alternative nicotine products containing vitamin E acetate.

“As findings on the vaping health epidemic continue to emerge, we know our state can address a critical issue by banning products with vitamin E acetate, which studies have linked to major health effects,” Hammoud said in a statement. 

All three bills have been referred to the House Regulatory Reform Committee for further consideration.