Gov. Gretchen Whitmer’s executive order banning the sale and use of flavored e-cigarettes, also known as vaping, has prompted its first legal challenge from a shop owner in Michigan’s Upper Peninsula.
The complaint was filed Wednesday by Kevin M. Blair, a partner at the law firm Honigman, Miller, Schwartz and Cohn based in Lansing, on behalf of Houghton resident and business owner Marc Slis. The complaint asserts the six-month ban will effectively force small businesses such as 906 Vapor, owned by Slis, to close permanently.
Slis testified in front of a Sept. 12 hearing before the state House Oversight Committee, acknowledging he was a longtime cigarette smoker who had tried many smoking cessation programs – sometimes on numerous occasions. He wasn’t successful until he tried e-cigarettes.
In fact, he said, it was so successful in helping him quit his habit he ended up purchasing the store to assist others attempting to quit smoking as well as create another income stream to help pay for his daughter’s medical school tuition.
“All my customers have three things in common: They are adults, they’re desperate to quit smoking after years if not decades of failing, and they all use flavors,” Slis said in his Sept. 12 testimony before the state House Oversight Committee.
His oldest customer, according to his testimony, is an 87-year-old woman who chooses to vape a flavor that resembles the taste of Fruity Pebbles breakfast cereal.
“You’ll see every vape shop close up and declare bankruptcy,” Slis said.
“These rules are going to kill small business owners like you,” Rep. Beau LaFave, R-Ironwood, told Slis.
The complaint asserts vaping storefronts generated $608.3 million in Michigan annually; created just under 4,300 jobs in the state that paid $190 million in wages and benefits in 2018 alone; and paid about $51.5 million in state and local taxes.
According to the complaint, the health benefits of flavored vaping outweigh the threats it poses to those individuals old enough to smoke it legally as well as consume legal products.
“A large and growing body of scientific evidence indicates that vapor products, while not beneficial to health, do not pose the same health risks, and are substantially less harmful than cigarettes,” the complaint reads. “This is due in part to the fact e-liquids do not contain tobacco and do not result in combustion by-products, like particulate matter (tar) and many other carcinogens and harmful substances.”
The complaint also cites a University of Georgia study that concluded switching from cigarettes to vaping could save up to 6 million lives in the United States over a 10-year period.
“We received the complaint late yesterday and, as with all litigation, we will review with our clients before we determine our response,” Attorney General Communications Director Kelly Rossman-McKinney said in an email to The Center Square.
Michael Ames, chief administrative and compliance officer at Joost Vapor in Grand Rapids, told The Center Square his employer is behind Slis and his court battle.
“Joost Vapor is proud to support the lawsuit that Marc Slis has filed,” Ames said. “He’s fighting for all of us to keep our doors open, to let our adult customers continue to make decisions for themselves.”
Ames warned: “If this ban goes into effect, we will be unable to operate my business the way we have been for six years, which puts in jeopardy our employees and their livelihood as well. It’s very disappointing to have the Governor create public policy without even talking to the people that it will affect – or our elected representatives," he said.
In a phone conversation with The Center Square, Blair stated: “I think we have a very good likelihood of success.”
He added: “We’re asking the court to protect small businesses throughout the state that are assisting individuals who are attempting to kick their smoking habits. The facts are on our side and I’m pretty confident the court will agree.”