{"id":740,"date":"2019-10-17T09:07:32","date_gmt":"2019-10-17T13:07:32","guid":{"rendered":"http:\/\/blogs.duanemorris.com\/cannabis\/?p=740"},"modified":"2019-12-04T16:14:47","modified_gmt":"2019-12-04T20:14:47","slug":"michigan-court-issues-preliminary-injunction-prohibiting-states-emergency-ban-of-flavored-nicotine-products-from-taking-effect","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/cannabis\/2019\/10\/17\/michigan-court-issues-preliminary-injunction-prohibiting-states-emergency-ban-of-flavored-nicotine-products-from-taking-effect\/","title":{"rendered":"Michigan Court Issues Preliminary Injunction Prohibiting State’s Emergency Ban of Flavored Nicotine Products From Taking Effect"},"content":{"rendered":"

By Joe Pangaro <\/a>and Jessica Linse<\/a><\/em><\/p>\n

On September 18, 2019, Michigan became one of the first states to impose a ban on flavored e-cigarettes. The Michigan Department of Health and Human Services (\u201cMDHHS\u201d) issued emergency regulations<\/a> that stated, in part, that a retailer shall not \u201c[s]ell, offer for sale, give, transport, or otherwise distribute, nor possess with intent to sell, give, or otherwise distribute a flavored nicotine vapor product.\u201d The ban went into effect immediately upon the release of the emergency regulations and was supposed to last for six months.<\/p>\n

Shortly thereafter a local vape shop owner filed suit in state court against MDHHS, Governor Gretchen Whitmer, and the State of Michigan seeking a preliminary injunction to prevent the emergency rules from going into effect.\u00a0 See<\/em> Marc Slis, et al. v. State of Michigan et at.<\/em>, Nos. 19-000152-MZ, 19-000154-MZ (Mich. Ct. Cl., Oct. 15, 2019). At the preliminary injunction hearing, one plaintiff testified the emergency rules forced him to \u201cshutter[] his business and that his customers have been obtaining their flavored vaping products from Wisconsin.\u201d\u00a0 Id.<\/em> at 7. Another presented evidence that the emergency rules \u201cban plaintiff from using its tradename and branding.\u201d Id.<\/em> The court found both harms constituted \u201cirreparable harm\u201d necessary for preliminary injunction.<\/p>\n

The court also found the Plaintiffs established a likelihood of success on the merits of their claims, because the MDHHS rules were procedurally invalid under Michigan law. Id.<\/em> at 8.\u00a0 Specifically, an agency must comply with standard procedures for the promulgation of new rules except in \u201cemergency\u201d situations, and the Court did not find there was a \u201cgenuine emergency\u201d that warranted circumventing the standard rule-making process with respect to flavored nicotine vaping. \u201cThe plaintiffs have convinced the Court that defendants\u2019 proffered reasons for the emergency declaration have fallen short.\u00a0 It is not enough under [Michigan law] for DHHS to merely identify a problem.\u201d\u00a0 Id.<\/em> at 10.<\/p>\n

The court also considered the potential harm to the public that would result from allowing the ban to be enacted. After recognizing \u201ccompelling interests on both sides of the issue,\u201d the court cited witnesses for the Plaintiffs that testified about their improved health after switching from traditional tobacco products to e-cigarettes. \u201cThus, plaintiffs have presented evidence that at least some segment of the population will be harmed by the vaping ban.\u201d Id.<\/em> at 14. Ultimately, after carefully weighing all factors pertinent to granting a preliminary injunction, the court concluded the Plaintiffs carried their burden, and issued a preliminary injunction preventing Michigan\u2019s emergency rules from going into effect.<\/p>\n

The Michigan ban of flavored e-cigarettes is significant because many other states around the country have since enacted similar bans, either through emergency regulation or executive order. These states include Rhode Island, Oregon, New York, Washington, Missouri and Montana, and the city of Los Angeles.\u00a0 Each of these bans may face similar challenges in the near future, and this court\u2019s decision to block the emergency rules, which is in line with another recent ruling<\/a> by a District Court in Indiana, indicate that such challenges may be successful.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Joe Pangaro and Jessica Linse On September 18, 2019, Michigan became one of the first states to impose a ban on flavored e-cigarettes. The Michigan Department of Health and Human Services (\u201cMDHHS\u201d) issued emergency regulations that stated, in part, that a retailer shall not \u201c[s]ell, offer for sale, give, transport, or otherwise distribute, nor … <\/p>\n

Continue reading “Michigan Court Issues Preliminary Injunction Prohibiting State’s Emergency Ban of Flavored Nicotine Products From Taking Effect”<\/span><\/a><\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[567,178,560],"ppma_author":[714],"class_list":["post-740","post","type-post","status-publish","format-standard","hentry","category-general","tag-e-cigarette","tag-michigan-cannabis","tag-vaping"],"authors":[{"term_id":714,"user_id":6,"is_guest":0,"slug":"duanemorris3","display_name":"Duane Morris","avatar_url":"https:\/\/secure.gravatar.com\/avatar\/843ff6e7a8fe5fc92109b47a45f34b6cf0ea499e6e788db23456c838b0ae6747?s=96&d=blank&r=g","author_category":"1","last_name":"Sullivan","first_name":"Margaret","job_title":"","user_url":"http:\/\/www.duanemorris.com","description":"Visit the Duane Morris website.<\/a>"}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/posts\/740","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/comments?post=740"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/posts\/740\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/media?parent=740"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/categories?post=740"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/tags?post=740"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/ppma_author?post=740"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}