Judge Rules In Favor Of Montana's Temporary Vape Ban

Montana Public Radio

December 18, 2019

A statewide temporary ban on the sale of flavored vaping products is now in place after a last-minute legal move from store owners failed to block it. The ban runs until April 16.

Ravalli County District Court Judge Jennifer Lint’s highly anticipated ruling was over six weeks in the making. Vape store owners filed suit against Gov. Steve Bullock’s order temporarily banning the sale of flavored products in early October.
The verdict? The state can now enforce emergency rules temporarily restricting the sale of flavored e-cigarette products in Montana.

Gov. Bullock’s Chief Legal Counsel, Raph Graybill, calls the decision a huge win for Montanans.

"Because it confirms what doctors in our state have been saying for six weeks now, which is that we know that there are short-term risks associated with vaping and we frankly don’t know the long term risks associated with vaping."

The state’s temporary ban includes the sale of flavored nicotine, THC, and CBD vape products, both in brick and mortar stores and online. Recreational use of THC, the component of marijuana that gets people high, was already illegal here.

Graybill, a candidate in the Democratic party’s primary race for Attorney General, helped argue the state’s position before Judge Lint.

"So many young people in Montana have access to these products," Graybill says. "60% of high school students have tried these. 30% of middle school students have tried these products. We know they’re dangerous. We know the long-term effects of nicotine use can be devastating. I think the court was really strong in drawing a line, saying we need to act and we need to protect young people in our state."

Montana’s newly implemented emergency ban comes in the wake of the federal Centers for Disease Control and Prevention urging the public to avoid all THC vape products as well as those obtained on the black market. The CDC recommends not using any e-cigarette or vaping products while its investigation continues.

The state health department says there have been seven cases of vape related lung illness in Montana, and one fatality.

The Montana vape shops that fought the ban say THC and black market vape products were responsible for the vaping-related illnesses seen in Montana and across the country. Those stores don’t sell those products. They also argued that if the temporary ban goes into effect, they’d be forced to lay off workers.

In her ruling, Judge Lint noted their economic harm argument wasn’t proven in court, adding protection of public health is more important than "preventing economic harm to vapor product businesses."

Montana Public Radio reached out for comment Wednesday to several e-cig and vape stores, including some involved in the case. All declined our interview requests. Several referred us to attorney Megan Windrel who represented their case in court. Windrel also did not respond.

The temporary ban will be enforced using both citizen complaints and inspections by local health officials. The state is notifying affected retailers with detailed letters. That information is also posted on the agency’s website.

According to Missoula City/County Health Department Director, Ellen Leahy, there are almost 200 vape stores in Missoula.

"This does not require that we inspect 195 places. As we often do with any regulation, we rely on the cooperation of the regulated community."

Leahy says local officials aren’t going into the temporary ban with a hard-nosed attitude, but are prepared to enforce the rules.

"We will visit if there’s a complaint. And after there’s been enough time for folks to reorganize their store and to decide how they’re going to comply or not, we will be able to do some spot checking or something like that, but we’re not going to inspect 195 places.

"There will be no sting operations whatsoever," Leahy says.

Meaning officials will not use minors to attempt to illegally purchase vape products.

Someone who violates the new temporary rules can be charged with a misdemeanor punishable by jail time not exceeding 6 months and a fine of up to $500.

Leahy says she does not anticipate her staff will be greeted with resistance from Montana vape store retailers who disagree with the emergency rule. Still, she says, “If there’s any reason for any time to think that they may be at risk, we will contact local law enforcement and get their advice. If their advice is to have assistance, then we would get that."

Almost nobody believes this story ends here, not even Gov. Bullock’s Chief Legal Counsel, Raph Graybill.

"An appeal seems likely from the petitioners. We’ll make the same arguments we’ve made all along. This ban isn’t about being difficult. It isn't about targeting businesses. We know a significant number of young people in our state have been enticed into using these products. We know these products are dangerous. Until we get some meaningful action from the federal government we can’t stand buy idly and let young people in our state get hurt," Graybill says.

If an appeal is filed, the Montana Supreme Court would decide next whether or not to take the case.

Paid for by Friends of Raph Graybill, PO Box 2728, Great Falls, MT 59403. Democrat.

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