Michigan’s ban on flavored vaping products

Last month, Michigan became the first state in the country to ban the sale of flavored vaping products. The ban came in an emergency rule that, with the governor’s approval, took effect immediately and allowed the state to temporarily bypass notice and comment.

Sellers of the products sued, and ten days ago, a state judge here in Michigan enjoined the rule. The judge’s rationale was curious. She acknowledged that “[t]here is no serious dispute with respect to whether a vaping-use crisis exists among youth.” But she didn’t think the vaping crisis was sufficiently “emergent” to justify skipping notice and comment. In her view, the scientific research upon which the state health agency relied  “was available to [the agency] at the latest in February 2019,” which she said was too “stale” to “support the finding that an ongoing emergency exists.”

The state has appealed the injunction and has even taken the extraordinary step of asking the Michigan Supreme Court to hear the case immediately. To support the state’s appeal, I filed an amicus brief on my own behalf. (Another amicus brief was filed on behalf of Tobacco-Free Kids, the Michigan Chapter of the American Academy of Pediatrics, and a number of other medical and community organizations.) Below is the summary of my argument; you can find the whole brief here.

In this case, a single judge on the Michigan Court of Claims enjoined an emergency rule addressing a public health crisis because she believed the crisis was insufficiently acute. As a result, highly addictive flavored vaping products that are designed to appeal to teenagers are now back on the shelves. The slow pace of court review means these products may continue to be sold for weeks or months, potentially imperiling the health and lives of thousands of Michiganders.

Of graver ongoing concern, the judge’s decision undermines the separation of powers and jeopardizes the state’s ability to move with dispatch to protect the public health. If left undisturbed, the decision will embolden lower courts to enjoin future emergency rules based on nothing more than their inexpert sense that the crisis in question is not a “real” emergency.

The district court’s decision rests on three independent errors. First, the Michigan law governing the issuance of emergency rules precludes a court from second-guessing the state’s decision that an emergency warranted immediate action. Second, the court failed to defer at all to the Michigan health agency’s expert judgment in conducting its review. Third, the court held the state to a rigid evidentiary standard that does not account for the complexity of the decision to exercise the state’s authority to issue emergency rules.

In arguing that courts ought to give wider berth to expert agencies in the performance of their duties, my brief touches on themes that are near and dear to my heart. Here’s hoping the Michigan courts act quickly to lift the injunction and let the emergency rule take effect.


* Enormous thanks to my students, Jackson Erpenbach and Joe Condon, who were indispensable aids in writing this brief.

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