Courts overturn Michigan flavor ban: ‘Totalitarianism has no place in America’

On Thursday, the Michigan Court of Appeals said in a 3-0 ruling that Judge Cynthia Stephen of the lower Court of Claims did not abuse her authority when she blocked the Michigan flavored vaping ban last October.  Instigated through an executive order by Governor Gretchen Whitmer in the early days of the EVALI debacle in 2019, the new ruling suggests that Michigan health regulators must show more evidence that access to flavored vapes poses a significant threat to young people.

The appellate court also provided an alternative path.  Instead of the governor imposing emergency orders on the vaping community statewide, Michigan lawmakers could follow the traditional legislative process and actually create a law if they want to forbid flavored vapes.

In the official ruling document, the three-judge panel makes clear that just because Whitmer declares that an emergency exists does not necessarily make it true. Evidence is still required, and the courts have the final word.

“Accordingly, in the context of a declaratory judgment action, when a court reviews an agency’s decision, concurred in by the Governor, that the preservation of the public health, safety, or welfare requires the promulgation of emergency rules absent notice and participation procedures, MCL 24.248(1), the court must accord due deference to the agency’s expertise and not invade the agency’s fact-finding by displacing its choice between two reasonably differing views. To be clear, however, giving due deference to agency fact-finding does not equate to subservience or complete capitulation and allow a reviewing court under MCL 24.248 and MCL 24.264 to abdicate entirely its role in determining the validity of an emergency rule.”

Related Article:  Michigan Supreme Court issues Strike Two for Gov. Whitmer’s vaping ban

The lawsuit filed last fall by two Michigan vapor companies against the state’s Department of Health and Human Services (DHHS) was one of the first of its kind, but other similar court battles were soon sprining up in states like New York, Oregon, Washington, California, and Massachusetts. In the case of the Michigan ruling, the appellate court said that the Whitmer Administration failed to present adequate evidence to the lower courts that a flavor ban was indeed warranted.  And – to put it “bluntly,” as per Judge Jane E. Markey - the DHHS apparently failed yet again during the appeals court review process, too.

“Bluntly stated, defendants did not produce evidence that an emergency situation existed such that a period of delay would make any relevant difference in preserving the public’s health, welfare, or safety. In sum, on the basis of the evidence presented at this stage of the proceedings, we agree with the Court of Claims that plaintiffs are likely to succeed on the merits regarding their shared request that the emergency rules be declared invalid.”

Judge Mark T. Boonstra did not pull any punches in his final remarks either.  In a separate concurrence, Boonstra likened Whitmer’s move as ‘totalitarianism.”

“I fully concur in the majority opinion. I write separately because this case highlights for me a growing concern about governmental overreach, both in this case specifically and also more generally, and because sometimes we as Americans need a wake-up call. This case—particularly in the context of other recent governmental actions—provides one.  Totalitarianism has no place in America.”

Thursday’s decision means that Michigan vape shops can now begin selling flavored vapor products once again with the exception of pod-style and closed-tank systems like VUSE and JUUL brands.  Flavored disposable vapes were banned at the federal level last December when President Donald Trump issued a partial favor ban via an executive order of his own. 

Related Article: NYT: Trump to announce flavor ban; open-system vaping might be okay

(Image courtesy of Shutterstock)

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