Appeals court blocks vape products ban
Oregon's Court of Appeals on Thursday blocked Gov. Kate Brown's executive order temporarily banning the sale of flavored nicotine and marijuana vaping products.
A temporary ban against the sale of recreational flavored marijuana vaping products, regulated by Oregon's Liquor Control Commission, remains in force.
The court's Oct. 17 decision follows two injunctions sought against Brown and the Oregon Health Authority seeking judicial review of the ban. Canby attorney J. Ryan Adams filed one of the injunctions late in the afternoon Wednesday, Oct. 16, on behalf of No Moke Daddy LLC, which operates two e-cigarette shops in downtown Portland under the name Division Vapor. Adams said his clients "believe the governor overstepped her authority by directing (the OHA and OLCC) to enact this ban."
Adams' clients were worried about the ban's impact on employment in the cannabis and nicotine vape industry. A ban on flavored THC vape products that is still in effect was enacted Oct. 11 by the OLCC and could hit small cannabis and nicotine vape shops that employ hundreds of Oregonians across the state. Division Vapor posted a message on its website saying the shop would be effectively out of business as of Monday, Oct. 14, ahead of the ban that began on Tuesday, Oct. 15. "This is their entire business," Adams said.
OLCC members agreed to a ban on flavored cannabis vape products in response to a growing number of cases of acute respiratory illness and death linked to vaping. Board members unanimously approved temporary rules proposed by the Health Authority. The board was responding to Gov. Kate Brown's Oct. 4 order placing a temporary six-month ban on the products. OLCC's ban took effect Tuesday, Oct. 15. It was expected to affect about 4,000 Oregon retailers.
State health officials have seen eight cases of respiratory illness associated with vaping have been reported in Oregon since early October. In two people have died, according to the Oregon Health Authority.
'Protecting the health of Oregonians'
Adams' legal challenge before the Court of Appeals focused on the way the ban was enacted. "One of the requirements to enact an emergency rule is the agency has to state a need for the rule and how the rule meets that need," he said. "The OHA stated the need for the rule was based on the governor's executive order, but nowhere in the rule did it say the rule meets the need. That was the basis for us asking the court to stay the rule."
Adams said his clients were excited to remain in business. "The employees of the shop are the biggest winners here today," he said.
The ruling will essentially force the Oregon Health Authority and Brown's office to prove that the rule did not violate state statute in exceeding legal boundaries while the court reviews the rule.
The governor's spokesman Charles Boyle said in a statement that, "the court's decision to enter a temporary stay today is unfortunate due to the ongoing public health threat posed by vaping-related illness."
Boyle maintains that in light of the nationwide outbreak of vaping-related injuries, a temporary ban under the state's emergency rulemaking process was the best path forward available to Brown and state agencies under Oregon law to protect the public health of Oregonians. "Gov. Brown will continue to work with the Vaping Public Health Workgroup, state agencies, stakeholders, and the Legislature to find long-term solutions that will protect the public health from vaping-related illness," he said. "Gov. Brown continues to urge Oregonians to heed the public health warning of the Oregon Health Authority and to stop vaping immediately."
Oregon Health Authority issued a statement Thursday saying the temporary ban was supposed to "protect the health of all Oregonians."
"Gov. Brown's executive order to enact a temporary ban on the sale of flavored vaping products is an evidence-based strategy to prevent youth, as well as adults attracted to flavors, from becoming exposed to the health risks from vaping products and from becoming addicted to nicotine," the agency wrote. "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. In addition, OHA encourages businesses, despite the stay, to voluntarily keep flavored vaping products off the shelves to protect Oregonians."