Democratic Gov. Gretchen Whitmer of Michigan said on Friday that she would appeal a decision blocking her ban of flavored e-cigarettes to the state Supreme Court, comparing the dangers of vaping to the Flint water crisis. Whitmer announced the ban in September, saying that the nation’s ongoing spate of serious lung injuries that have been linked to vaping constituted a public health emergency.

“As governor, I’m going to do it unilaterally until I can get the legislature to adopt a statute and write it into law,” Governor Gretchen Whitmer told MSNBC at the time. “This is too important.”

Ban Blocked by Lower Court

But after vape shops filed suit to block the governor’s executive order, the Michigan Court of Claims put the ban on hold after it had been in effect for only two weeks, calling into question the emergency nature of the action because of a nearly month-long delay in implementing it. Judge Cynthia Stephens also noted that evidence suggests that some adult e-cigarette users would return to smoking if flavored vaping products are taken off the market.

Whitmer filed an application for emergency leave with the Michigan Court of Appeals and asked the state Supreme Court to take the case. The governor’s office said that the lower court ruling “would seriously undermine the Governor’s ability to respond to emergent threats to public health, safety, and welfare.”

“After seeing how the Flint water crisis was mishandled, it’s more important than ever that we listen to our public health officials when they make recommendations to protect our citizens,” Whitmer said.

“Our Chief Medical Officer has found that the explosive increase in youth vaping that we’ve seen over the past few years is a public health emergency. For the sake of our kids and our overall public health, we must act swiftly to get these harmful and addictive products off the market,” she added. “I’m hopeful that the Supreme Court will immediately take up this case so we can ensure our kids’ safety.”

Whitmer Says Decision Compromises Public Health

Whitmer’s application for emergency leave stated that “the court of claims not only misunderstood the law and errantly issued a preliminary injunction, it also fundamentally compromised both the public health of this state and the exercise of core and critical power of the executive branch.”

“By enjoining Defendants from enforcing the Rules that were enacted to address this emergency, the court of claims left this state paralyzed in a perilous status quo, and marked out a form of judicial intervention that is both dangerous and contrary to law: courts second-guessing the expert judgment of public health officials dealing with a public health emergency,” the filing continued.

As of October 25, Michigan has reported 44 probable and confirmed cases of lung injury caused by vaping, with one fatality. Patients have reported using vape products containing THC in 81% of the cases.


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