A ban on flavored vaping products that hurts the businesses that make them outweighs the state of Michigan's interest in keeping those products from adolescents and children, a Michigan judge ruled in temporarily lifting the state's ban.
Michigan Court of Claims Judge Cynthia Diane Stephens made her ruling Oct. 15, nearly two weeks after retailers were forced to remove the products from shelves, reported The Detroit Free Press.
Michigan was the first state in the nation to announce a ban on flavored vaping products, and it was the second state, after New York, to issue a ban in the wake of a slew of reported vaping-related illnesses across the country. The illness, now known as EVALI, had sickened 1,299 people as of Oct. 11. Twenty-six people have died.
The ban was to have been effective for 180 days, with the option to extend for six months.
But the judge said there was no justification for the state to invoke emergency rules that would destroy the two businesses that sued the state over the ban, the Free Press reported. The state knew about problems with vaping nearly a year ago, the judge said, but failed to act, according to the publication.
"An agency cannot create an emergency by way of its own failure to act," she wrote in her ruling, according to the Free Press.
Michigan Gov. Gretchen Whitmer said she will request a stay of the ruling and appeal it to the state Supreme Court.
"This decision is wrong. It misreads the law and sets a dangerous precedent of a court second-guessing the expert judgment of public health officials dealing with a crisis,” Whitmer said in a statement reported in the Free Press.