A temporary stay of Gov. Kate Brown’s 180-day ban on flavored nicotine vaping products has now been made permanent, pending a judge’s final ruling in the case. The order by Appellate Commissioner Theresa M. Kidd came down last week in two cases against Oregon Health Authority regarding the ban, one of which is being argued by the Canby law firm Tyler Smith & Associates.
Ryan Adams, a partner in the Smith firm, received the temporary stay last month in response to an emergency petition. Commissioner Kidd issued her order granting the permanent stay after reviewing the arguments by the Smith firm on behalf of their client, Paul Bates, owner of the Division Vapor vape shop in Portland, as well as those of the attorneys representing Gov. Brown and OHA.
Although the appellate court has not made a final ruling in the case — and it’s anyone’s guess as to when that might happen — the order did express Commissioner Kidd’s belief that the vape shop owners were “likely to prevail” in the case, and that this weighed heavily in her decision to grant the stay.
She also cited petitioners’ argument that the ban on flavored nicotine vaping products — if it were allowed to go forward — would have an “immediate and devastating” effect on the state’s estimated 4,000 vape shops — most of them independently owned small businesses.
“If the rule is enforced, they will lose their businesses entirely within weeks,” Kidd wrote in her order, quoting the petitioners. “Their employees will lose their jobs. In addition, one petitioner explains, if they are forced to close their shops, the businesses will lose their leases and potentially, be on the hook for tens of thousands of dollars in rent that they do not have. Indeed, petitioners assert that enforcement of the rule will cause the entire industry in Oregon to be destroyed.”
OHA did not contest that the ban would cause “irreparable harm” to the petitioners, she noted.
Another factor was that the majority of the severe lung-injury cases that have been reported across the country involved vaping products containing THC (cannabis) — not nicotine. A separate, 180-day ban on the use of flavored cannabis vaping products was allowed to take effect last month.
Petitioners had initially argued, and Kidd seemed to agree, that the ban — if enacted — would have consequences far beyond just vaping, that it would, in fact, give OHA the “almost unlimited power to ban products.”
“In petitioners’ view, ‘it would mean that OHA … could ban any product it believed created a public-health issue,'” the order stated. “‘A few come readily to mind: non-electric vehicles (childhood asthma), aluminum foil (Alzheimer’s), coffee (cysts and gout), cell phones (brain cancer), alcohol (liver disease), salt (blood pressure), butter (stroke and heart attack) and margarine (heart disease).'”
It now appears very unlikely that Gov. Brown’s ban on flavored nicotine vaping products will go forward. The only way that it could is if the court rules in the state’s favor before February, when the order is scheduled to expire anyway.
Brown’s executive order imposing the temporary ban had followed a widespread outbreak of acute lung injuries that have been linked to the use of both marijuana and nicotine vape products. More than 1,500 cases have been reported across the country with 26 deaths, two of them here in Oregon.
Photo by E-Cigarette Reviewed.
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