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Supreme Court Says No To Gov’s Request To Hear Vaping Ban Lawsuits

January 7, 2020

The Michigan Supreme Court Dec. 27 declined Gov. Gretchen Whitmer’s request to bypass the Court of Appeals in two cases challenging her ban on flavored vaping products.

Whitmer wanted the Supreme Court to take immediate action in vaping cases after the lower court denied the state’s request to stay a ruling allowing the retail sale of flavored vaping products.

Justice Stephen Markman was the lone dissent, saying delaying adjudication is likely to cause “substantial harm” to the interests of the separation of powers.

“The need for expedited review is underscored in the present case by the fact that the issue may well be rendered moot before this Court even has an opportunity to address the issue,” Markman noted. “The rules in dispute are effective only until April 2, 2020, and the parties’ briefs are not due in the Court of Appeals until Feb. 3, 2020.

“This leaves us an extremely short period of time for the Court of Appeals to issue an opinion, an appeal to be filed in this Court, and this Court to hear arguments, review the case, and issue a decision,” he added. “In other words, the rules may well expire before they have ever been enforced, notwithstanding a presumptively valid decision by the Governor of this state to have these rules enacted.”

Mark Slis and his Houghton-based 906 Vapor filed a suit in Court of Claims following Whitmer’s public health emergency declaration, in conjunction with the Department of Health and Human Services, that resulted in emergency rules banning the sale of flavored nicotine vaping products in retail stores and online.

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.

Court of Claims Judge Cynthia Diane Stephens granted a preliminary injunction, prompting the state to appeal, but both Stephens and the appeals court denied Whitmer’s request to put the case on hold — which would have effectively reinstated the ban.

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