Michigan Court Sides With Vape Shops, Blocks Ban


Jimmy Hafrey


Michigan Appellate Court Upholds Injunction Against The State In Favor Of Industry

Lawmakers throughout the world have been lobbied by anti-vaping activists to engage in a sustained campaign to completely outright prohibit their production, sale, usage, and possession. Despite these unrelenting efforts, there are still rational actors who make decisions based on science over emotion that still believe in upholding the basic rule of law.

A Michigan state appellate court upheld an injunction against an emergency ban on vapor products ordered by Governor Gretchen Whitmer last year. The three-judge panel ruled that the state did not demonstrate an underlying public health emergency that justified the ban.

As a result, the ban remains technically imposed but is not actually enforceable while litigation proceeds. For the time being, it remains uncertain whether the state plans to press ahead in the courts to contest the injunction and uphold the alleged validity of the ban.

The Governor and supporters of the ban claimed that vaping was a public health emergency, despite a multitude of evidence reaffirming its lack of harm. Despite this, they claimed vaping lures young people into unhealthy and addictive habits. Critics of the measure believe it is based on emotion rather than science, that adults have the right to safe access to tools that help them abstain from smoking.

Blocked Ban

A three-judge panel of the Michigan Court of Appeals upheld a preliminary injunction issued by the Court of Claims against Governor Gretchen Whitmer’s public emergency order that effectively banned flavored vapor products last September. The appellate court’s unanimous decision means that the emergency order is unenforceable as it remains in litigation.

For now, the state appears to not be moving ahead to challenge the ruling and seek the ban’s enforcement. The Michigan Department of Health and Human Services deferred questions to the Michigan Attorney General’s office, and the Attorney General’s office has yet to respond for comment.

The harshly-worded 13-page opinion that came with the ruling, Judge Mark Boonstra called the order a prime example of government overreach and criticized the Governor’s scientifically unsound and politically motivated attempts to connect the coronavirus to the order issued well before it’s existence. “You might ask, what does COVID have to do with vaping? Well, maybe nothing. Our Governor has herself linked the two, however.” Boonstra wrote, claiming that he was writing his opinion separately because sometimes Americans need a “wake-up call.”

The upholding of the injunction has been a welcomed sigh of relief for the vaping industry, who were already in fear for their futures following a series of regulatory crackdowns and the new challenges posed by the coronavirus crisis and related lockdown orders. While their prospects still remain uncertain, the stability offered by the ruling at least gives these small local businesses the proper foundation to begin to adapt to this new normal.

Vaping Facts

Public health scholars and harm reduction experts have long cautioned against the dangers of prohibition and its unintended consequences. In an article published in the journal Science, a group of respected public health researchers came together to speak out against prohibitive policies and restrictive regulations targeting vaping. They note that there is no evidence that vaping is harmful, and that prohibitive policies will simply force smokers back toward tobacco or even black market alternatives.

Additionally, these respected experts also note vaping’s remarkable efficacy as a smoking cessation aid and tool. A study, published in the New England Journal of Medicine, found that vaping was more effective than other nicotine-replacement therapies in helping adults both quit smoking and remain tobacco-free.

Not only is vaping one of the most effective smoking cessation aids available, but research has repeatedly demonstrated vaping to be a reduced harm alternative to smoking as well. Separate studies from Public Health England and the Roswell Park Comprehensive Cancer Center each found that vaping is 95% and 93% safer than smoking, respectively.

Not only does vaping continue to be demonstrated as an effective smoking cessation aid and reduced harm alternative to smoking, but current evidence indicates that there is no risk of harm from long-term usage. A study published by the National Academy of Sciences found that not only is vaping significantly less harmful than smoking, but there are currently no known long-term health effects associated with prolonged use, meaning lifetime vapers can breathe a sigh of relief.

Looking Forward

The upholding of the injunction against Michigan’s unconstitutional vaping ban is a significant victory for the vaping industry and community. Following a similar blocked ban in New York, a legal precedent has been firmly established that Governors will need to follow the same process for passing laws as everyone else and can’t force their agendas by way of an executive order.

Vapers and vape shops within the state have a bit of reprieve from the sustained campaign of prohibition against them. While the future remains unclear, at least a bit of the haze has finally been lifted.

What are your thoughts regarding the appellate court siding with the vaping industry over the state? Do you believe this will have implications for the larger vaping industry now that a legal precedent has been established? Let us know what you think in the comments below, be sure to like us on Facebook and follow us on Twitter to receive all the latest vaping news!

(Image Credit – Pixabay – https://pixabay.com/images/id-802296/)

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