Lawsuit Seeks Injunction on Michigan’s Ban on Flavored Vape Products

A merchant in Houghton filed three lawsuits Wednesday against the State of Michigan and the Department of Health and Human Services over its emergency order to ban flavored vape products for 180 days, which is scheduled to take effect on Oct. 2.
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man vaping
A Houghton merchant has filed three lawsuits against the state and the Department of Health and Human Services over a 180-day ban on flavored vape products. // Stock photo

A merchant in Houghton filed three lawsuits Wednesday against the State of Michigan and the Department of Health and Human Services over its emergency order to ban flavored vape products for 180 days, which is scheduled to take effect on Oct. 2.

Mark Sils, owner of 906 Vapor LLC that has been operating since 2015, through his legal team, Detroit-based Honigman via its Lansing office and O’Dea, Nordeen, Burink, and Pickens in Marquette, contends in the complaint filed in the state circuit court in Houghton that the emergency rules that the state, Gov. Gretchen Whitmer, and Attorney General Dana Nessel used to justify the ban were beyond its power “ultra vires” and “should be deemed invalid by the court.”

The lawsuit seeks an emergency ex parte motion for a temporary restraining order of the ban as well as a preliminary injunction.

Sils has testified before the legislature that if the emergency rules and other actions taken by the state go into effect, he will be forced to close his business. Owners of dozens of other stores selling vape products across the state also report they will be forced to close as a result of the ban.

The ban requires affected storeowners sell off, return, or destroy all inventory of flavored nicotine vapor products (except tobacco-flavored nicotine vapor products), and rearrange store layouts so that any advertisements of any vapor product is 25 feet away from the cash register, candy, food, and soft drinks, and other requirements.

Sils says his store will be forced to remove 80 percent of its inventory as a result of the ban. Sils and other storeowners note that the state’s emergency rules did not cover traditional tobacco products like cigarettes, which they say are more harmful than vaping products.

According to a September report by Guerilla Economics, the vapor industry in Michigan generated $608.2 million in revenue in 2018 and supports 4,290 jobs. At that rate, the industry paid $51.4 million in state and local taxes last year. There are around 200 vapor shops in Michigan, according to the American Vaping Association, and more than 500,000 adults in Michigan use vapor products. Many adults use vapor products to quit smoking.

The plaintiffs are asking the court for a declaratory judgment that the emergency rules cited by the state are “procedurally invalid,” and “substantially invalid.”

The plaintiff action states that vapor related illnesses reported in recent months around the country “are likely the result of aftermarket additives such as illicit tetrahydrocannabinol (THC) and marijuana.”

It adds “illegal vapor cartridges that contain THC have also been reported to contain significant amounts of vitamin E acetate, which is a diluting and thickening agent that makes cannabis oil more affordable. In most cases of reported illness, authorities have found vitamin E acetate from cannabis samples in the patients’ lungs.

“This rogue oil might not completely transform into vapor, and instead travels into the lungs causing harm. These aftermarket THC oils are bought on the black market and are not available for sale at regulated vapor shops.” Store owners selling flavored vape products say the majority of illnesses reported so far involve black market or modified THC cartridges using vitamin E acetate.

EDITOR’S NOTE: On Oct. 14, the Michigan Court of Claims issued a preliminary injunction ending the state’s ban on flavored vaping products.

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