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State Seeks Direct Appeal To Supremes On Vaping Ban Decision

Whitmer Fights To Reverse Plenary Injunction

A Vape Pen | Lindsay Fox CC 2.0

LANSING (MIRS News) - As promised, Gov. Gretchen Whitmer is taking her fight to reinstate a ban on flavored vaping products directly to the Michigan Supreme Court (MSC).


Friday, the Attorney General's office filed a brief asking the MSC to instantly bypass the Michigan Court of Appeals (COA) and vacate the Court of Claims' (COC) preliminary injunction stopping the ban. They also filed an emergency request to appeal the COC decision to the appeals court. "After seeing how the Flint water crisis was mishandled, it's more important than ever that we listen to our public health officials when they make recommendations to protect our citizens," Whitmer said in a statement. "Our chief medical officer has found that the explosive increase in youth vaping that we've seen over the past few years is a public health emergency. "For the sake of our kids and our overall public health, we must act swiftly to get these harmful and addictive products off the market. I'm hopeful that the Supreme Court will immediately take up this case so we can ensure our kids' safety," she added. The case was initially filed by Marc Slis and his Houghton-based 906 Vapor. A Clean Cigarette and The Vapor Shoppe followed suit on Oct. 1 and Oct. 18, respectively. A fourth case from Mister E-Liquid was filed in federal court. Slis said he was "disgusted" and "extremely angry" by state leaders' depiction that he and other vape shop owners are "the bad guy." Slis, who said he's received death threats because people have "been fooled into thinking I'm poisoning children," said patients with vaping-related lung injury are using tetrahydrocannabinol (THC)-tainted products while his store only sells water soluble Food and Drug Administration (FDA)-registered liquids.  "They are just vilifying us," he said. "They are literally doing public harm. They are driving people back to smoking and dying, and that is unforgiveable." Slis' viewpoint arguably is supported by the FDA's recent test results on vaping materials collected from lung injury patients in the state.  Nationwide, there have been more than 500 hospitalizations and several deaths from lung illnesses from vaping. Of the five Michigan injuries, two patients' products contained only nicotine, one contained only tetrahydrocannabinol (THC) and one contained both THC and nicotine, according to a Michigan Department of Health and Human Services (DHHS) press release Friday. The FDA also found that one patient's product contained both THC and vitamin E acetate, which is an oil derived from vitamin E. The latter product contained 23% vitamin E Acetate while two vaping cartridges submitted by a medical marijuana caregiver to a Michigan Marijuana Regulatory Agency facility contained 40% or more of vitamin E acetate. COC Judge Cynthia Diane Stephens of the appeals court granted 906 Vapor and Slis' request for an injunction earlier this month, calling into question Chief Medical Executive Dr. Joneigh Kahldun's finding that youth vaping constitutes a public health emergency. The Judge also noted that the plaintiffs showed a likelihood their lawsuits could succeed on the merits, noting the state had information it used in finding the emergency in its possession at least as early as February, and in some instances earlier, and the state could have chosen to go through the normal rulemaking process. "The sole basis for this determination was the court's misinterpretation and misapplication of (Michigan Compiled Laws) 24.248(1) and its determination that DHHS' alleged delay in promulgating the Rules somehow makes them invalid," wrote Assistant Attorney General James E. Long in the court filing. "This error was both statutory and constitutional in nature and carries with it troubling consequences that are being felt at this very moment by DHHS as it attempts to respond to other emerging threats." Slis, who unsuccessfully tried to quit a 40-year smoking habit until he discovered vaping products, said he would support stiffer penalties for anyone who sells vaping products to minors, suggesting $500 fine for a first offense and $1,000 fine for a second offense. As for his lawsuit, Slis says he will fight it "as long and as hard as necessary." "I know myself and fellow shop owners are doing a good thing," he said. "We're helping people. We are not harming our youth." Rep. Julie Brixie (D-Meridian Township) applauded Whitmer's and Attorney General Dana Nessel's appeal efforts, saying she would continue to support the efforts in the Legislature. "The Governor's ban on flavored vaping products was a bold, necessary step to address the predatory advertising that has caused a vaping epidemic among our youth," Brixie said in a statement. "We have a moral obligation to help prevent an entirely new generation from falling victim to lifelong addiction to nicotine and the associated health risks."


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