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Montana vape shops sue to block Gov. Bullock’s ban on flavored products

The lawsuit was filed in state District Court in Hamilton
Montana vape shops sue to block Gov. Bullock’s ban on flavored products
Posted at 9:05 AM, Oct 18, 2019
and last updated 2019-10-18 11:21:10-04

HELENA — Three Montana vape shops and their trade association filed suit Thursday to overturn Gov. Steve Bullock’s emergency ban on flavored e-cigarette products, saying the “arbitrary and capricious” order would put them out of business. The emergency rules take effect on October 22 and last for 120 days, the maximum time allowed by law. The ban includes the sale of all flavored e-cigarette products, including flavored nicotine, THC, and CBD vaping products, in-store and online. The ban does not require retailers to destroy their existing inventory.

The lawsuit, filed in state District Court in Hamilton, also asked the judge to block Bullock’s rule from taking effect while its legality is decided. Most of the vape shops’ products would be considered “flavored e-liquid” under the order and halting their sale would deprive them of their “primary source of revenue,” the suit said.

“If the emergency rules are enforced, Freedom Vapes, Liberty Smoke and Ublaze Vapor will most likely be required to completely shut down,” the lawsuit said. “The petitioners want nothing more than to save the lives and health of their friends, neighbors and fellow Montanans from the ravages of (combustible) cigarettes.”

The suit said the state’s rationale that flavored products sold in adults-only stores is leading to increase use by teen-agers is flawed, and that the order should be thrown out because a public-health emergency is not caused by the products sold at vaping stores.

The Montana Department of Public Health & Human Services also had earlier recommended that all Montanans refrain from vaping, citing nationwide investigations into and concerns about severe lung diseases among those using vaping products. Montana has had two reported cases of vaping-related lung disease this year and, just this week, one death. The victim or the victim’s hometown have not been identified.

Marissa Perry, a spokeswoman for the governor, said Thursday evening his office had not seen the lawsuit. However, she said the administration is “confident in the work of pediatricians and our public-health professionals and stand by them.” “Emergency rules exist for situations exactly like this,” Perry continued. “We continue to urge Montanans to take recommendations by public-health officials seriously and refrain from using any vaping product.” The ban would require shops to pull flavored products from their shelves for four months.

The suit, filed by the Montana Smokefree Association and vape shops based in Hamilton, Missoula, and Billings, said the recent health scare should not be attributed to legal vaping products. The most likely culprit is the “illicit addition” to e-cigarettes of marijuana or the drug’s active ingredient, tetrahydrocannabinol, or THC, the suit said.

“Neither THC and/or marijuana are included as ingredients of any (e-cigarette) product permitted for retail sale in the United States under federal law, and are not included as ingredients in any product sold by petitioners,” the suit said. It also disputed data cited in the order that flavored products are behind an increase in vaping by teen-agers.

“Plain and simple, the Montana (e-cigarette) industry will cease to exist within days once enforcement of emergency rules commences Oct. 22, with nearly all (e-cigarette) product businesses close and laying off employees,” the suit said.

In related news, leading e-cigarette company Juul Labs will stop selling several flavored products in the United States, the company announced Thursday. Only tobacco, mint and menthol flavors will remain for sale. Meanwhile, Juul's mango, creme, fruit and cucumber flavors have already been removed from the online store -- which was the only place the company sold these products directly to 21-and-up consumers in the United States after it pulled them from retail locations late last year. These flavored pods will continue to be sold abroad.

Here is the latest information from the CDC website :

  • As of October 8th, 1,299 lung injury cases associated with the use of e-cigarette, or vaping, products have been reported to CDC from 49 states, the District of Columbia, and 1 U.S. territory.
  • Twenty-six deaths have been confirmed in 21 states.
  • All patients have reported a history of using e-cigarette, or vaping, products.
  • Most patients report a history of using tetrahydrocannabinol (THC)-containing products. The latest national and state findings suggest products containing THC, particularly those obtained off the street or from other informal sources (e.g. friends, family members, illicit dealers), are linked to most of the cases and play a major role in the outbreak.
  • Therefore, CDC recommends that you should not use e-cigarette, or vaping, products that contain THC.
  • Exclusive use of nicotine containing products has been reported by some patients with lung injury cases, and many patients with lung injury report combined use of THC- and nicotine-containing products. Therefore, the possibility that nicotine-containing products play a role in this outbreak cannot be excluded.
  • At this time, FDA and CDC have not identified the cause or causes of the lung injuries in these cases, and the only commonality among all cases is that patients report the use of e-cigarette, or vaping, products.
  • This outbreak might have more than one cause, and many different substances and product sources are still under investigation. The specific chemical exposure(s) causing lung injuries associated with e-cigarette product use, or vaping, remains unknown at this time

The CDC also says that among 573 patients with information on substances used in e-cigarette or vaping products in the three months prior to symptom onset, about 76% reported using THC-containing products; 32% reported exclusive use of THC-containing products; about 58% reported using nicotine-containing products; and 13% reported exclusive use of nicotine-containing products.

The CDC and FDA have not identified the cause or causes of the lung injuries in these cases, and the only commonality among all cases is that patients report the use of e-cigarette, or vaping, products. This outbreak might have more than one cause, and many different substances and product sources are still under investigation. The specific chemical exposure(s) causing lung injuries associated with e-cigarette product use, or vaping, remains unknown at this time.