SALEM — The Oregon Court of Appeals on Thursday granted a temporary stay on Gov. Kate Brown’s executive order imposing a six-month ban on the sale of flavored nicotine and marijuana vaping products.
The temporary ban against the sale of recreational flavored marijuana vaping products, regulated by the Oregon Liquor Control Commission, remains in force.
The ruling occurred in response to two petitions for injunctions filed with the court against Brown and the Oregon Health Authority seeking judicial review of the ban.
Canby attorney J. Ryan Adams filed one of those petitions Wednesday 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 (the OHA and OLCC) to enact this ban,” Adams said. “Essentially what we asked the court to invalidate the rule.”
According to Adams, his clients decided to file for the injunction because they were worried about the employment impacts the ban would have on what they consider a booming industry that employs thousands of Oregonians.
Also Thursday, Juul Labs stopped selling fruit and dessert flavors, acknowledging the public’s “lack of trust” in the vaping industry.
The governor’s executive order followed a widespread outbreak of acute lung injuries that are being tracked across the country and linked to the use of marijuana and nicotine vape products. As of Tuesday, more than 1,400 cases had been reported with 33 deaths, two of those happening in Oregon. Last week, the OLCC approved temporary rules that took effect Tuesday that would take all flavored vape products off the shelves of about 4,000 retailers across the state.
On its website, Division Vapor had posted a message saying it would be effectively out of business as of Monday, anticipating the ban that would take effect the next day.
“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 via the Oregon Health Authority and Brown’s office to prove that the rule hasn’t violated state statute in exceeding their boundaries while the court reviews the rule.
Responding to the ruling, Brown’s press secretary Charles Boyle said 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 rule-making process is the best path forward available to Gov. Brown and state agencies under Oregon law to protect public health of Oregonians.