Three Montana vape shops and their trade association filed suit Thursday to overturn Gov. Steve Bullock’s emergency ban on flavored e-cigarette products, saying the “arbitrary and capricious” order would put them out of business.
The lawsuit, filed in state District Court in Hamilton, also asked the judge to block Bullock’s rule from taking effect while its legality is decided.
Most of the vape shops’ products would be considered “flavored e-liquid” under the order and halting their sale would deprive them of their “primary source of revenue,” the suit said.
“If the emergency rules are enforced, Freedom Vapes, Liberty Smoke and Ublaze Vapor will most likely be required to completely shut down,” the lawsuit said. “The petitioners want nothing more than to save the lives and health of their friends, neighbors and fellow Montanans from the ravages of (combustible) cigarettes.”
The suit said the state’s rationale that flavored products sold in adults-only stores is leading to increase use by teen-agers is flawed, and that the order should be thrown out because a public-health emergency is not caused by the products sold at vaping stores.
Last week, Bullock announced the order banning flavored e-cigarette products, and noted the rise in use of vaping products by teen-agers. The ban isn’t effective until next Tuesday.
The state Department of Public Health and Human Services also had earlier recommended that all Montanans refrain from vaping, citing nationwide investigations into and concerns about severe lung diseases among those using vaping products.
Montana has had two reported cases of vaping-related lung disease this year and, just this week, one death. The victim or the victim’s hometown have not been identified.
Marissa Perry, a spokeswoman for the governor, said Thursday evening his office had not seen the lawsuit.
However, she said the administration is “confident in the work of pediatricians and our public-health professionals and stand by them.”
“Emergency rules exist for situations exactly like this,” Perry continued. “We continue to urge Montanans to take recommendations by public-health officials seriously and refrain from using any vaping product.”
The ban would require shops to pull flavored products from their shelves for four months.
The suit, filed by the Montana Smokefree Association and vape shops based in Hamilton, Missoula and Billings, said the recent health scare should not be attributed to legal vaping products.
The most likely culprit is the “illicit addition” to e-cigarettes of marijuana or the drug’s active ingredient, tetrahydrocannabinol, or THC, the suit said.
“Neither THC and/or marijuana are included as ingredients of any (e-cigarette) product permitted for retail sale in the United States under federal law, and are not included as ingredients in any product sold by petitioners,” the suit said.
It also disputed data cited in the order that flavored products are behind an increase in vaping by teen-agers.
“Plain and simple, the Montana (e-cigarette) industry will cease to exist within days once enforcement of emergency rules commences Oct. 22, with nearly all (e-cigarette) product businesses close and laying off employees,” the suit said.
