Supreme Court Declines To Hear Whitmer Appeal On Vaping Ban

In a blow to Governor Gretchen Whitmer, the Michigan Supreme Court late last week unanimously said it would not hear a pair of appeals seeking to greenlight emergency rules to ban flavored nicotine vaping products.

Justices wrote in an order issued Friday but released Saturday that they did not believe the questions in Slis, et al v. State of Michigan, et al and A Clean Cigarette Corporation v. Governor, et al (MSC Docket Nos. 161625/161626) should be reviewed by the court.

Ms. Whitmer last year sought to ban flavored products through the emergency rules process. Currently, putting similar rules in place through the regular administrative rules process continues even as the Court of Claims and the Court of Appeals ruled the initial ban as invalid. Both courts found that using the emergency rules process was inappropriate. Those rulings did not involve the content of the rules.

Last year, after losing at the Court of Claims, Ms. Whitmer sharply criticized the judge as having gotten the law wrong. But at all three levels of the judiciary, all 11 judges who considered the case said it was Ms. Whitmer who was wrong on the law.

In a statement, Whitmer Press Secretary Tiffany Brown said: “The order is disappointing, but the governor remains committed to protecting kids from the dangers of flavored vaping products that target them.”

A hearing on MOAHR 2019-107 Trackto ban flavors, including menthol and mint, is scheduled for 9 a.m. Tuesday, October 20. The draft rules would prohibit the sale or distribution of flavored nicotine vapor products – including menthol flavors but excluding tobacco flavors – to anyone in the state and the use of imagery representing a flavor to sell the product.

The proposed rules are clear that they do not prohibit a person from merely possessing flavored vapor products, nor would they prevent a Michigan-based retailer, wholesaler, manufacturer or other distributor from transporting flavored vapor products within the state or outside of it. However, possession with intent to sell would be considered a violation.