Governor Whitmer is taking her vaping ban decision to the Supreme Court.

In response to last week’s Court of Claims order blocking the Department of Health and Human Services’ emergency rules banning flavored nicotine vaping products, Governor Gretchen Whitmer filed an application for emergency leave with the Michigan Court of Appeals and asked the Michigan Supreme Court to take the case directly on Friday October, 25.

Governor Whitmer says the decision comes after a judge of the Court of Claims called into question the Michigan Department of Health and Human Services’ finding of emergency, and substituted her own judgment for that of Michigan’s top public health official and governor. According to the governor's office, if the ruling stands, it would seriously undermine the Governor’s ability to respond to emergent threats to public health, safety, and welfare.

“After seeing how the Flint water crisis was mishandled, it’s more important than ever that we listen to our public health officials when they make recommendations to protect our citizens,” said Governor Whitmer. “Our Chief Medical Officer has found that the explosive increase in youth vaping that we’ve seen over the past few years is a public health emergency. For the sake of our kids and our overall public health, we must act swiftly to get these harmful and addictive products off the market. I’m hopeful that the Supreme Court will immediately take up this case so we can ensure our kids’ safety.”

The official filing for emergency leave states, “the court of claims not only misunderstood the law and errantly issued a preliminary injunction, it also fundamentally compromised both the public health of this state and the exercise of core and critical power of the executive branch. […] By enjoining Defendants from enforcing the Rules that were enacted to address this emergency, the court of claims left this state paralyzed in a perilous status quo, and marked out a form of judicial intervention that is both dangerous and contrary to law: courts second-guessing the expert judgment of public health officials dealing with a public health emergency.”

In September, after her Chief Medical Executive, Dr. Joneigh Khaldun, made a finding that youth vaping constitutes a public health emergency, Governor Whitmer ordered the Michigan Department of Health and Human Services to issue emergency rules to ban the sale of flavored nicotine vaping products in retail stores and online.

Nationwide, nicotine e-cigarette use jumped 78% last year alone. In 2018, more than 3.6 million U.S. kids, including 1 in 5 high school students and 1 in 20 middle school students were regular users. These rates are still climbing, likely fueled by the availability of flavors akin to apple juice, bubble gum, and Nerds.

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