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Vape-shop owners seek to continue halt of enforcement on product ban

Gov. Bullock says ban on flavored e-cigs should take effect Wednesday
Posted at 5:45 PM, Dec 16, 2019
and last updated 2019-12-17 00:19:06-05

HELENA — Vape-shop owners who sued to halt the Bullock administration’s ban on flavored vaping products in Montana went back to court Monday, asking a judge to confirm her temporary order blocking the ban.

The request came in the wake of Friday’s announcement from state health officials that they planned to start enforcing the ban Wednesday, because the temporary order expired more than six weeks ago.

Raph Graybill, chief legal counsel for Gov. Steve Bullock, said in court filings Monday that no legal authority exists to keep extending a temporary restraining order.

“An extension of the order would do nothing more than facilitate the continued exposure of a dangerous, addictive drug to Montana’s youth in the face of unknown risks and skyrocketing injuries and deaths,” he wrote. “The court should deny (the request) and issue its ruling on this critical public health issue.”

Ron Marshall, whose vape-shop firm is one of the plaintiffs in the lawsuit, told MTN News Monday that shops are still open for business and selling flavored and other products. He also noted that it’s illegal to sell vaping products to minors.

“We’re going to continue and wait and see what the judge says,” he said. “This is the governor trying to dictate by legislative fiat, and that’s not how the government works.”

The Bullock administration announced in early October that it would ban the sale of flavored e-cigarette products in Montana, citing the rise of vaping illness and use of the products by teen-agers.

Three Montana vape shops and their trade association filed suit Oct. 17 to block the ban and have it declared illegal.

District Judge Jennifer Lint of Hamilton issued a temporary restraining order blocking the ban the next day and held a hearing Oct. 31 and Nov. 1 on whether to make that TRO permanent, while she decided the case.

But the Bullock administration said last week that her TRO technically expired, at the latest, on Nov. 1, and that it should wait no longer to enforce the ban.

“The imminent threats to public health and safety that precipitated the rules are ongoing and demand a public-health response,” the administration wrote in its court notice last Friday.

It said five additional cases of lung injuries from vaping products have been confirmed since the ban was first announced, including four after the lawsuit was filed.

Attorneys for the vape-shop owners filed a response Monday, saying the judge should confirm that the temporary order remains in place until she issues a further ruling.

They said no new vaping illnesses had been reported in Montana since the hearing and that “the nationwide media frenzy following the spurt of vaping-related injuries is no virtually non-exists.”

Because no decision on a more permanent ban on enforcement has been issued, the temporary ban remains in effect, they said.

Graybill’s response, filed late Monday, said no legal authority exists to extend temporary restraining orders indefinitely. If it did, parties would have no reason to seek a permanent injunction, which requires a higher level of proof of harm, he said.