UPDATE: Governor Whitmer vows to appeal e-cig ruling

Published: Oct. 15, 2019 at 2:54 PM EDT
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UPDATE -- 5:21 p.m.

Michigan Gov. Gretchen Whitmer says she will appeal a judge's decision to block enforcement of the state's new ban on flavored electronic cigarettes.

The Democrat issued a statement Tuesday calling the ruling "wrong" and saying it "sets a dangerous precedent" of a court second-guessing the expert judgment of public health officials.

Whitmer last month ordered the issuance of emergency rules after her chief medical executive found that youth vaping is a public health emergency.

Court of Claims Judge Cynthia Stephens ruled Tuesday that vaping shops that sued are likely to prevail on their contention that the rules are procedural invalid.

Whitmer wants the Michigan Supreme Court to issue a "quick and final" ruling on the dispute.


2:40 p.m.

A Michigan judge is blocking the state's two-week-old ban on flavored e-cigarettes.

Court of Claims Judge Cynthia Stephens issued a preliminary injunction Tuesday.

She says Gov. Gretchen Whitmer's administration's delay in implementing the ban undercut its position that emergency rules were needed.

Stephens also says there is evidence that if flavored vaping products are prohibited, adults will return to using more harmful combustible tobacco products.

Defend MI Rights today issued the following statement from spokeswoman Andrea Bitely following Judge Cynthia Stephen’s issuance of a preliminary injunction:

“We are pleased today that the court saw the ban of flavored vaping products for what it truly is: an overreach of government into the lives of adults. We agree with Judge Stephens, the rules are invalid, and we are thankful that she saw the truth. We are ready to work through the normal legislative process to arrive at a balanced solution that protects the rights of adults to use vaping products as an alternative to combustible cigarettes and at the same time get these products out of the children’s hands.”

The lawsuit was filed by vaping businesses that say they will go out of business due to the ban.

Whitmer has said the ban is necessary to combat an epidemic of teens vaping.

“For too long, companies have gotten our kids hooked on nicotine by marketing candy-flavored vaping products as safe,” Governor Whitmer said in a statement on Wednesday, Oct. 2. “That ends today.”

Gov. Gretchen Whitmer announced Sept. 4 that Michigan would become the first state to move toward banning flavored e-cigarettes, accusing companies of using candy flavors and deceptive advertising to appeal to kids. But New York officially became the first state to institute a ban when regulators approved a set of emergency rules on Tuesday.

Michigan’s ban specifically included menthol flavored products but excluded tobacco flavored items. New York did not include menthol flavored products in its ban, prompting criticism from some health groups that kids will simply switch to that flavor.

Michigan’s rules also ban any description of vapor products as “clean, safe, harmless or healthy” and limit advertising of vapor products near candy, food and soft drinks in stores.

Federal health officials have not identified a single device or ingredient involved in the lung illnesses. President Donald Trump has proposed a federal ban on flavored e-cigarettes and vaping products.

On Sept. 25, the owner of a northern Michigan vape shop decided to sue to stop Gov. Gretchen Whitmer's ban on flavored electronic cigarettes, contending the emergency rules are illegal and will force him to close his store.

Mark Slis, who operates 906 Vapor in Houghton, filed the lawsuit in Houghton County Circuit Court.

Slis says the emergency rules are invalid, arbitrary and capricious in part because tobacco products -- the most prevalent source of nicotine -- are unaffected by the ban.

The ban effects everything from selling, distributing, and advertising flavored vaping products. Due to the ban, retailers will either have to throw out leftover products or send them back to suppliers.

If retailers failed to comply, they'll be fined or could be sent to jail. Violators could see up to six months in prison and a fine up to $200.

The ban is set to last for at least 180 days.

On Oct. 4, the Michigan Department of Health and Human Services (MDHHS) announced the first death associated with the outbreak of vaping-related lung illnesses in the state.

MDHHS was notified about the death of an adult male on Oct. 2.

“We are saddened to announce a death associated with this outbreak,” Joneigh Khaldun, chief medical executive and chief deputy for health for MDHHS, said. “To protect public health, we urge people to consider refraining from vaping until the specific cause of the vaping-related severe lung injuries being reported nationwide has been identified.”

The MDHHS has released a statement regarding the emergency rules for protection of youth from nicotine addiction.

The statement clarifies that the emergency rules prohibit selling, giving or otherwise distributing flavored nicotine vapor products in the state of Michigan.

The MDHHS said "the rules do not, however, prohibit mere possession of flavored nicotine vapor products in Michigan, nor do they prohibit returns of such products to a wholesaler or manufacturer, or transportation of such products to persons outside the state of Michigan."

“Implementing these rules is a huge step in protecting our kids from the dangerous effects of vaping,” said Dr. Joneigh Khaldun, chief medical executive and chief deputy for health for MDHHS. “Right now, too many youth in Michigan have gotten hooked on nicotine because vaping companies are marketing flavors like candy, apple juice and cappuccino. Prohibiting the sale of these flavored nicotine vaping products will help us protect our kids and our overall public health.”

Since the end of August there have been 30 confirmed or probable vaping related illnesses in Michigan.

The age of people effected by this unknown illness is anywhere from 16 to 67.

Doctors say the illnesses resemble an inhalation injury. Symptoms have included shortness of breath, fatigue, chest pain, diarrhea and vomiting.

The MDHHS recommends taking steps to take care of yourself:

•Anyone who uses an e-cigarette or vaping product should not buy these products off the street and should never modify or add any substances to these products that are not intended by the manufacturer.

•Youth, young adults and pregnant women should not use e-cigarette or vaping products.

•Adults who do not currently use tobacco products should not start using e-cigarette products.

•Adults who are vaping should not smoke combustible cigarettes as a replacement for nicotine.

Copyright 2019 Associated Press. All rights reserved.

Dr. Joneigh Khaldun, chief medical executive and chief deputy for health for the Michigan Department of Health and Human Services released a statement regarding the preliminary injunction.

<i>“This ruling is deeply concerning and a threat to Michigan’s public health. There is no question that youth vaping is a public health crisis. The data is overwhelming, and we’re getting new information every day that reinforces that the Governor and MDHHS were correct to take swift action to protect our kids from the harmful effects of vaping.”</i>


Michigan Attorney General Dana Nessel also released a statement on the matter.

<i>“We are resolute in our efforts on behalf of Governor Whitmer and the Michigan Department of Health & Human Services to protect the health of Michigan’s children.  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.”</i>