Lawsuit filed to block Whitmer flavored e-cigarette ban

By: - September 25, 2019 6:05 pm

Gov. Gretchen Whitmer’s ban on flavored vaping products is being challenged in Houghton County Circuit Court. 

Plaintiff Marc Slis, who owns 906 Vapor in Houghton and testified before a state House committee earlier this month, says Whitmer’s first-in-the-nation ban on flavored vaping products will cause significant harm to his business. Slis and his attorneys have filed three separate suits, seeking a preliminary injunction and emergency relief.

“All my customers have three things in common: They are adults, they’re desperate to quit smoking, after years if not decades of trying, and they all use flavors,” Slis said in his Sept. 12 testimony before the state House Oversight Committee. 

The injunction says Slis would have to close his store and destroy more than 80% of his inventory if the rules take effect, as is planned for Oct. 2. 

“The numbers in my shop are that 99% of my customers use flavors,” Slis said. “The flavors are absolutely necessary and they are the key to quitting smoking, the single largest killer of humans in this state, in this country.”

Whitmer announced her ban in the first week of September and instructed the state Department of Health and Human Services (DHHS) to declare a public health emergency related to vaping, particularly among teenagers.

The emergency declaration allows Whitmer to largely avoid legislative action against the ban due to the emergency action. 

Dr. Joneigh Khaldun, the state’s chief medical executive and chief deputy director for health, on Tuesday testified before a U.S. House panel on the “public health emergency” of youth vaping. U.S. Rep. Rashida Tlaib (D-Detroit) said at the hearing that “kids are used as guinea pigs.”

Since Whitmer announced her ban, a handful of other states have followed suit. President Donald Trump has also floated the idea of a national ban on flavored vaping products. 

Slis’ lawsuits generally state that Whitmer’s actions offered little to no opportunity for public input or review. 

“The Emergency Rules will likely cause [Slis] to go out of business — which is especially arbitrary and capricious because stores selling [cigarettes, flavored and unflavored] remain unaffected by the Emergency Rules,” the complaint states.

Attorney General Dana Nessel’s office will likely be tasked with defending Whitmer’s ban in court. 

“We have not yet seen the complaint and, as with all litigation, will review with our clients before we determine our response,” Nessel spokeswoman Kelly Rossman-McKinney said in an emailed statement on Wednesday evening.

Kevin Blair, a partner in the Lansing office of law firm Honigman LLP, is one of the attorneys representing Slis in the case. 

“We’re confident that we have good arguments and we’re likely to succeed on the merits,” Blair told the Advance, noting that he expects the circuit court judge in Houghton in the Upper Peninsula to offer emergency relief that could halt implementation of the ban to come by the end of the week.

Asked about the circuit court venue rather than a state court, Blair would only say he’s “confident we’re in the right venue.”

Slis’ complaint cites a section of the state’s Judicature Act that “any county in which any governmental unit … exercises or may exercise its governmental authority is the proper county in which to commence and try actions against such governmental units.”  

While the Legislature has no clear authority to challenge Whitmer’s ban using emergency rules, individual lawmakers have in recent days introduced bills to try to block implementation.

State Rep. Beau LaFave (R-Iron Mountain) last week introduced a bill that would block enforcement of the rules, whether implemented at the state or federal levels. 

Similarly, state Rep. Steven Johnson (R-Wayland) has introduced legislation to allow for flavored vaping products that are below 2% nicotine levels, which he says makes them less attractive to teenagers and allows for use for adults looking to quit smoking. 

“Government bureaucrats should not make sweeping decisions that would take away smoking alternatives for responsible adults, and affects the livelihoods of hundreds of business owners across Michigan,” Johnson said in a statement. “The governor’s recent directions to her department regarding flavored e-cigarettes goes too far and needs to be limited in ensuring those who want to quit smoking still have options while protecting minors.”

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Nick Manes
Nick Manes

Nick Manes is a former Michigan Advance reporter, covering West Michigan, business and labor, health care and the safety net. He previously spent six years as a reporter at MiBiz covering commercial real estate, economic development and all manner of public policy at the local and state levels.