Federal Lawsuit Filed On E-Cigarette Flavors Ban

GRAND RAPIDS – A federal lawsuit was filed Friday against the state for the emergency rules issued by the Department of Health and Human Services banning nearly all flavors for e-cigarettes.

The lawsuit was filed at the U.S. District Court in Grand Rapids by Mr. E-Liquid, a Grand Rapids-based manufacturer, retailer and wholesaler of the liquids used in e-cigarettes. The suit names Governor Gretchen Whitmer and Department of Health and Human Services Director Robert Gordon as defendants.

It is at least the second lawsuit filed this week against the emergency rules Gordon issued this month at Whitmer’s direction. Ms. Whitmer cited rising rates of children using e-cigarettes, child-pleasing e-cigarette flavors and a smattering of recent vaping-related illnesses and deaths in ordering all flavors other than tobacco be banned. An e-cigarette retailer filed a lawsuit in state court via the Houghton Circuit Court.

Both plaintiffs are represented at least in part by the Honigman law firm, and both complaints have similar language backing up the safety of e-cigarettes.

This case, having been filed in federal court, however, makes claims of how the rules violate federal law. It asserts they violate the Commerce Clause of the U.S. Constitution that says only Congress can regulate interstate commerce and the Supremacy Clause of the Constitution (claiming the federal Tobacco Control Act has supremacy over state rules).

“To comply with these marketing restrictions, in-state retailers and resellers, including plaintiff, must either remove such material from their websites, which means it cannot be seen by consumers and customers in other states, or risk an enforcement action,” the lawsuit says. “The Emergency Rules project Michigan’s policy choices regarding flavored vaping products on other states that might take a different approach. By preventing in-state retailers and resellers from engaging in sales and marketing activities in other states, the state will have substantially altered the flow of goods across state borders. Moreover, Michigan will have projected its ban on certain products into other states, even those that have adopted public health policies of maximizing adult access to flavored vapor products so that they can move away from their smoking habits.”

“Governor Whitmer has forced another Michigan small business owner to fight her in court to protect their business. Her decision to bypass the legislative process, not allow for public comment and force a short deadline has created a great hardship for hundreds of small business owners across the state,” said Andrea Bitely, spokesperson for the Defend MI Rights Coalition, in a statement.

This story was published by Gongwer News Service.