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

Judge Cynthia Diane Stephens of the Michigan Court of Claims ruled against Governor Gretchen Whitmer yesterday by shutting down her self-imposed statewide ban on flavored vapes.  Just as news was breaking in early September of an alleged outbreak of mysterious “vaping-related” lung injuries occurring across the country, Whitmer immediately overreacted to the unconfirmed reporting.  She signed an executive order which went into effect on October 2 and focused more on the prohibition of nicotine-based flavors rather than Black Market THC-based cartridges.

Two Michigan vape shops immediately filed a lawsuit based on their contention that Gov. Whitmer’s actions were “procedurally invalid.”  Lawyers for the plaintiffs claimed that Whitmer failed to demonstrate why rushing an executive order was preferable to the normal legislative process of passing a conventional bill approved by both houses of the state congress.

Judge Stephens sides with the plaintiffs. 

In one section of her ruling, the judge states that the improved health outcomes of the adult vaping community of former smokers “could, and likely would, be lost under the emergency rules."  According to ABC News, Judge Stephens also blasted the governor for her seemingly rash executive actions.  Stephens writes that if teen vaping were such an emergent issue, then why hadn’t Whitmer and the state congress taken legislative action months or even years ago?

"Thus, and at this stage of the litigation, defendants have undercut their own assertions of an emergency by the fact that they demurred on taking action for nearly a year, and in the case of some information even longer than that, after they were in possession of the information cited in support of the emergency declaration.”

The judge also came to the defense of the two plaintiffs in her published remarks - 906 Vapor based in Houghton and the A Clean Cigarette chain.  The latter had previously operated about twenty local vape shops throughout the state at the time of the filing, but it has since been forced to close at least five of those stores due to Whitmer’s recent statewide vape ban. 

Related Article:  Amid growing fears of Black Market THC, Michigan Gov promotes Black Market e-liquids by banning flavored vapes

The owner of 906 Vapor, Marc Slis, had also been forced to close his shop on October 1, the day before the Michigan flavor ban officially went into effect.  He was also very close to filing for bankruptcy when the judge’s Tuesday ruling was officially announced.  According to the Detroit Free Press. Judge Stephens believes the governor’s actions were unnecessarily destructive to local businesses. 

“Not only has plaintiff A Clean Cigarette lost a significant percentage of its sales and closed several stores due to the ban, the ban will force plaintiff to rebrand itself entirely…In essence, the emergency rules will destroy plaintiff A Clean Cigarette’s business as it currently exists,” writes Judge Stephens.

By signing her now-defunct executive order, Governor Whitmer made Michigan the first state in the union to implement a statewide flavor ban on vaping products.  Massachusetts, Rhode Island, Oregon, Montana, and New York have immediately followed suit.

The battle over flavored vaping in Michigan continues.

Whitmer, of course, is outraged by the court’s ruling.  In a public statement released immediately following the publication of the judge’s remarks, she once against shifts the focus from the intentional destruction and bankruptcy of small businesses in Michigan to an unsubstantiated “youth vaping crisis” that is allegedly plaguing the nation.

“This decision is wrong. It misreads the law and sets a dangerous precedent of a court second-guessing the expert judgment of public health officials dealing with a crisis,” Whitmer says in a public statement. “The explosive increase in youth vaping is a public health emergency, and we must do everything we can to protect our kids from its harmful effects."

Coincidentally, Judge Stephens ruling mimics another decision of an Appellate Court in New York earlier this month which temporarily stopped Gov. Cuomo’s executive order banning flavored vapes until at least October 18.  At that time, all parties will have the opportunity to plead their case to the New York Supreme Court.       

For Michigan, the battle over flavored vaping will also continue.  Judge Stephens further writes, "This is not a final order and it neither resolves the last pending claim nor closes the case." Lawyers of the plaintiffs say they are “looking forward to a full trial on the merits of our case."

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(Image courtesy of The Detroit Free Press)

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