Montana becomes 4th state to temporarily halt vape ban; Will Massachusetts be next?

Judges in New York, Michigan, and Oregon have already issued temporary restraining orders on vaping ban executive actions signed into law by their perspective governors.  On Friday, Ravalli County District Judge Jennifer Lint issued a similar ruling against Montana Governor Steve Bullock’s 120-day flavor ban set to take effect on Tuesday. Judge Lint was appointed by Bullock in late August 2018.

Three vapor companies and a state advocacy group signed on as plaintiffs in the historic lawsuit.  Vape store chains uBlaze Vapor, Liberty Smoke, and Freedom Vapes joined the Montana Smoke Free Association to accuse Gov. Bullock of implementing “arbitrary and capricious” emergency rules that would force at least twenty stores statewide to immediately close their doors.

The plaintiffs also claim that the real health threat currently is the “illicit addition” of contraband marijuana- and THC-based cartridges to the market.  Not a single diagnosis of the so-called vaping-related pulmonary disease has never been attributed to the vaping of conventional, FDA-regulated, nicotine-enhanced vapor products.

Related Article:  Another win: Oregon court blocks nicotine vapes ban; leaves THC-vapes ban in place

According to Montana’s The State, Ron Marshall – owner of the Freedom Vapes – estimates that if the flavor ban were to remain in effect, then approximately 95 percent of the products sold in his three stores will be negatively affected.  He further argues that implementing an emergency ban on a specific product of any kind, vaping or otherwise, is a slippery legal slope. 

We’re just fighting a governor who’s trying to take away our liberties with the stroke of a pen,” Marshall said. "If the governor can take away those liberties with a swipe of a pen, then what's next? If it's us today, who will it be tomorrow?”

Just one day prior to the Montana ruling, the Court of Appeals in Oregon issued a temporary stay on an executive action signed by Gov. Kate Brown that would have banned the sales of flavored vapor products for at least six months.  On the prior Tuesday, Michigan Gov. Gretchen Whitmer’s executive action implementing a similar statewide vape ban was also temporarily halted by Court of Claims Judge Cynthia Diane Stephens.  In early October, the New York Appellate Court overturned Gov. Andrew Cuomo’s comparably-worded executive decision, too.

Dr. Siegel testifies in hearing about Massachusetts vape ban; Court's ruling due tomorrow

Governors signing executive orders prohibiting the sales of flavored vapor products is not restricted to just these four states.  The governor of California considered comparable emergency actions, but he soon came to the belief that he did not have the constitutional power.  Washington (State) Gov. Jay Inslee signed an executive order on October 10 directing the Washington State Department of Health to implement emergency rules banning all flavored nicotine and THC vaping products. 

Related Article: Meet the judge who just put the KIBOSH on Michigan’s vape ban

And last Friday, the hearings began in a lawsuit over the flavor ban signed into law by Massachusetts’s Gov. Charlie Baker several weeks ago.  For this hearing, the plaintiffs called out the Big Guns.  Dr. Michael Siegel, a public health expert from Boston University and a former employee of the CDC said that there is no “rational basis” for banning nicotine-based vapes.

According to Siegel, the CDC and the FDA are now both finally acknowledging that Black Market THC-enhanced cartridges are to blame for the deadly outbreak of lung injuries occurring in at least 46 states.  The judge is expected to rule Monday.

Related Article:  Siegel: Utah DOH ‘unequivocally concludes’ nicotine vaping nonrelated to lung scandal

(Image courtesy of NBC Montana)

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