SALEM — The Oregon Court of Appeals on Thursday granted a temporary stay on Oregon Health Authority rules enforcing a six-month ban on the sale of flavored nicotine and medical 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 came in response to two petitions for injunctions filed with the court against Gov. Kate Brown and the Oregon Health Authority seeking judicial review of the ban.
Brown had previously issued an executive order directing the agencies to implement 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 client decided to file for the injunction because they were worried about the employment impacts the temporary ban would have on what they consider a booming industry that employs thousands of Oregonians across the state.
Brown’s executive order followed an 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 state approved temporary rules that took effect Tuesday that would take all flavored vape products off the shelves of approximately 4,000 retailers across the state.
On their website, Division Vapor had posted a message saying they would be effectively out of business as of Monday, 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 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 Gov. Brown’s office to prove that the rule hasn’t violated state statute in exceeding their boundaries.
Charles Boyle, Brown’s press secretary, 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 rule-making process is the best path forward available to Gov. Brown and state agencies under Oregon law to protect public health.
“Gov. 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.”
John Harper owns four tobacco retail stores, including Under the Bridge Smoke Shop in Astoria and Seaside Smoke and Vape Shop.
He said he will have to lay off 20% of his staff as a result of the ban. Harper employees 20 to 25 people in Clatsop County.
“The e-liquids take a lot of labor,” Harper said. “They’re labor-intensive to manage the customers and educate them so ‘yes,’ we have extra staff employed just for that sector of our business.”
Harper said he began running one employee light after the news broke of the ban because of the subsequent downturn in the market.
“I feel that some of this is a knee-jerk reaction to what’s going on,” he said. “But the worst thing you can do is ban it and force the profitability onto the open market on the black side where they can buy all these different chemicals and it’s not regulated — and that is a tragedy in itself.”