On Thursday, the Oregon Court of Appeals issued a temporary stay on Governor Kate Brown’s executive order to ban flavored nicotine-based vapes statewide.  The prohibitory actions, however, will remain in full effect for flavored marijuana and THC-enhanced vapor products.  The ruling comes less than a week after the six-month ban was initially implemented.

Plaintiffs in the lawsuit include two vapor companies, Vape Crusaders Premium E-Liquid LLC and Vape Crusaders Premium E-Liquid LLC.  The vaping advocacy group Vapor Technology Association (VTA) also signed on to the lawsuit for additional support.  The plaintiffs argue that the Oregon flavor ban will cause small businesses across the state to “suffer severe and irreparable harm.”

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The court is siding with the plaintiffs, at least until more more information can be forwarded for “judicial review.” The order granting the temporary stay and issued by the Oregon Appellate Court Commissioner Teresa Kidd states the following.

“Petitioners seek judicial review of a temporary administrative rule adopted by the Oregon Health Authority, OAR 333-015-1000, that prohibits retailers from ‘offer[ing] for sale a vapor product containing a flavor, to a consumer in Oregon.’ The rule became effective October 15, 2019. Petitioners have moved to stay enforcement of OAR 333-015-1000 pending judicial review. Petitioners have further requested that the court grant an immediate temporary stay, before respondents will have had the opportunity to file a response to the motion for stay, because, petitioners assert, as a result of the rule, they, along with numerous other similarly situated businesses, will be forced to permanently close within weeks.”
 
The request for an immediate and temporary stay is granted. Enforcement of OAR 333-015-1000 is stayed temporarily, pending respondents having the opportunity to respond to the motions for stay, petitioners having the opportunity to reply, and the court considering the parties’ filings and rendering a decision on the motions.”
 

According to Oregon Public Radio, the Oregon Health Authority (OHA) is unsure if it will continue the litigation process against the vapor companies.  In light of the rapidly evolving facts behind the mysterious lung injuries plaguing the country and which instigated Gov. Brown’s executive actions to instill the flavor ban in the first place, the OHA may reconsider its banning of flavored nicotine vapes only. 

Judges in New York and Michigan have also halted statewide vaping bans

Both the CDC and the FDA have openly acknowledged that the most likely cause of the “vaping-related” ailments is Black Market THC cartridges.  To date, zero of the over 1000 medical diagnoses thus far have been directly attributed to the vaping of FDA-approved nicotine-based vapes.  Still, the OHA is warning all Oregonians in an official statement to refrain from the vaping of all substances until further notice.

 “This decision means the rules are, for now, not in effect; the agency is communicating with its partners, including local public health authorities and other state agencies, that enforcement of the rules will be temporarily suspended.”
 
“The recommendations from the Governor and the resulting rules from OHA and OLCC are intended to help our agencies protect the health of all Oregonians. OHA continues to investigate vaping-associated lung injuries, and continues to urge all Oregonians who use vaping products to stop vaping immediately and take advantage of cessation resources.”
 
 

The Thursday ruling in Oregon comes just days after Judge Cynthia Diane Stephens overturned a similar flavor ban initiated by Michigan Governor Gretchen Whitmer.  In Judge Stephen’s ruling, she writes that the state had “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.”

A third judicial decision handed down from the New York appellate court in early October also issued a temporary restraining order on the implementation of Governor Andrew Cuomo’s executive action banning flavored vapes. Just as in the Oregon case, the VTA was one of the named plaintiffs.  In response to the Appellate Court’s ruling,  VTA Executive Director Tony Abboud said that his agency was “very pleased” with the court’s decision and that the VTA will continue the fight to save vaping, state-by-state.

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