Oregon Court of Appeals blocks flavored vape ban from taking effect

(Courtesy/Wikimedia Commons)

The Oregon Court of Appeals has temporarily blocked a statewide ban on the sale of flavored nicotine and marijuana vaping products.

The ruling follows two petitions seeking court review of Gov. Kate Brown’s executive order, which temporarily banned the sale of those products.

Canby attorney J. Ryan Adams filed one of those petitions seeking an injunction yesterday on behalf of No Moke Daddy LLC which operates two e-cigarette shops in downtown Portland under the name Division Vapor.

“We believe the Governor overstepped her authority by directing (Oregon Health Authority and Oregon Liquor Control Commission) to enact this ban,” Adams said. “Essentially what we asked the court to invalidate the rule.”

Adams said the vape shop challenged the ban because they were worried about the employment impacts on what they consider a booming industry that employs thousands of Oregonians across the state. 

Brown’s executive order followed a widespread outbreak of acute lung injuries that are being tracked across the country and linked to the use of both marijuana and nicotine vape products.

As of last week, more than 1,300 cases had been reported with 26 deaths, two of those happening in Oregon. Last week the liquor commission approved temporary rules that were ordered to take effect this past Tuesday, Oct. 15 that would take all flavored vape products off the shelves of approximately 4,000 retailers across the state. 

On their website, Division Vapor posted a message saying they would be effectively out of business as of Monday, Oct. 14 ahead of the ban.

“This is their entire business,” Adams said. “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. 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 that his client is excited they will get to remain in business.

“The employees of the shop are the biggest winners here today,” he said. 

The ruling will essentially force the state to prove that the rule hasn’t violated state statute in exceeding their boundaries while the court reviews the rule.

The vape ban can’t go into effect until the state responds and the Court of Appeals rules whether Brown and the health authority overstepped state law.

Responding to the ruling Thursday, the Governor’s Press Secretary 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 is the best path forward available to Brown and state agencies under Oregon law to protect the public health of Oregonians.

“Governor 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.”



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