A lawsuit to block a temporary ban on flavored e-cigarettes and vaping products in Montana is now in the hands of a judge in Hamilton.
Ravalli County District Judge Jennifer Lint Friday said the lawsuit challenging implementation of the Bullock administration’s emergency rules to block the sale of flavored vaping products is officially now at the top of her to-do list.
"I am gonna take it under advisement. My clerk and I have absolutely prioritized it.”
Three Montana vape stores and a state trade association last month challenged that emergency ban that was set to take effect last month for 120 days.
Gregory McDonnell is one of their attorneys.
McDonnell says the federal Centers for Disease Control and Prevention and Food and Drug Administration haven’t yet determined what exactly has sickened over 1,800 nationally and killed 37.
Montana to date has identified five cases of vape-related pulmonary injury and one death. There were two such cases when the emergency ban was announced.
"There’s a million persons in Montana. I don’t want to sound cold, but is two out of a million an epidemic? Is two out of a million an emerging outbreak," McDonnell asked in court.
The plaintiffs argue evidence indicates that THC and black market vape products are predominantly responsible for vape-related illness. Gov. Bullock’s Chief Legal Counsel Raph Graybill counters this is no time for guesswork.
"If you'll remember back to a year ago when there was the Romain lettuce e-coli outbreak; we didn’t know exactly which farm the e-coli came from, but we took all the Romaine lettuce off the stores because we knew that it was making people sick. Here we know that over 35 people have died, over 1,800 have gotten sick and we know that five people in Montana have gotten sick. The only commonality across those cases was a recent use of vaping. And so it makes sense in a public health outbreak exactly like this one, to remove those kinds of dangerous products from commerce."
Gregory McDonnell, the attorney for the Montana vape retailers added the state’s emergency ban would financially devastate his clients.
"These small businesses are going to go out of business, and be forced to lay off their employees; default on their loans. They still have contracts with their landlords; default on their leases. They'll be crushed financially and personally."
Graybill, who’s a democratic candidate for state attorney general in 2020, says there’s a lot more more at risk that a handful of vape shops:
"Well, the biggest players in the industry have all voluntarily removed their most popular flavored products from the market. So it really does leave small custom flavor shops like the petitioners in this case as one of the dominant sources of the flavors we know that teenagers in Montana overwhelmingly prefer."
Plaintiff’s attorney Gregory McDonnell says the administration’s emergency ban was premature and inappropriate; that there are other approaches, including legislative approaches, to address the concerns about young people accessing e-cig and vape products. His clients say no one from the administration or the health department bothered to work with them.
The Bullock administration says the outbreak is clearly an emerging health threat and has the legal authority to implement emergency rules.
The one thing almost everyone agreed on during Friday’s hearing? That no matter what Judge Lint decides, this case will most likely wind up before the Montana Supreme Court.