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Michigan’s Ban on Flavored-Vaping Products Put on Hold by Judge (1)

Oct. 15, 2019, 8:09 PMUpdated: Oct. 15, 2019, 9:03 PM

Michigan’s first-in-the-nation flavored vaping products ban has been temporarily blocked by a judge who said the state didn’t follow proper rule-making procedures when imposing the emergency ban.

The Oct. 15 ruling comes 13 days after the state imposed the ban, aimed at stemming the rash of hospitalizations health officials have linked to vaping. Businesses suing the state assert that the rule essentially shut them down, greatly limiting the inventory they could sell.

The case is one of several brought by Michigan vaping businesses saying the state’s ruling doesn’t follow state law for promulgation of regulations on businesses and isn’t backed by scientific evidence.

Judge Cynthia D. Stephens agreed with plaintiffs Marc Slis and his business, 906 Vapor, that a temporary block on the state’s ban is proper because the vaping industry suffered harm from the ban and that the plaintiffs had a good chance of winning their case down the line. The state rushed the process without addressing the substance of the underlying prohibition, Stephens said.

“We’re pleased with the result and looking forward to a full trial on the merits,” said Kevin Blair, partner with Honigman LLP and attorney for Slis and 906 Vapor.

The Michigan Attorney General’s office issued a statement saying it would seek a stay of the court’s order and petition the Michigan Supreme Court for a speedy appeal.

“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,” Gov. Gretchen Whitmer (D) said in a statement.

Whitmer was the first governor to announce a flavored vaping ban, opting to go that route instead of imposing taxes on vaping products. Michigan vaping companies have said the ban would force them to close up shop or take their businesses to other states.

Since her move in September several other states have responded in kind, including New York, which had its similar state rule temporarily blocked by a court as well.

The case is: Slis v. Michigan, Mich. Ct. Cl., No. 19-000152-MZ, preliminary injunction granted 10/15/19.

(Updated with quote from Michigan governor. )

To contact the reporter on this story: Alex Ebert in Columbus, Ohio at aebert@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Peggy Aulino at maulino@bloomberglaw.com

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