A Montana trade association and several vape shops filed a lawsuit Thursday seeking a temporary restraining order and preliminary injunction on the state’s 120-day ban on the sale of flavored vaping products.
The 54-page lawsuit was filed in Ravalli County District Court by the Montana Smokefree Association, Freedom Vapes, Liberty Smoke and UBlaze Vapor.
The ban is set to begin Oct. 22. The emergency administrative rules would expire on Feb 19.
Montana Gov. Steve Bullock, a Democrat, signed off on the ban on Oct. 8 saying that e-cigarettes were a growing health epidemic harming youth.
According to the lawsuit, over 20 businesses in Montana that sell vape products will either be forced to shut their doors or face significant criminal penalties for non-compliance.
The businesses and their trade association said the state should be required to consider “less restrictive and onerous means” to reduce access of the products to youth and look at ways to address incidents of pulmonary ailment they say are caused “by the illegal use of illegal black market products.”
Montana health officials identified the state's first death attributed to vaping this week. There have been three identified cases of vaping-associated pulmonary illness in the state, including the death reported Wednesday.
The state’s emergency rules will directly impact members of the general public who use vaping products as a way to quit smoking combustible tobacco, according to the lawsuit.
The lawsuit claims the rise in vaping products has resulted in a corresponding reduction in the consumption and use of traditional combustible tobacco products in the United States. Both adult and youth smoking rates in the country are at all-time lows, the lawsuit said.
While not completely harmless, the lawsuit said vaping products do not pose the same health risks as traditional combustible tobacco products, which produce smoke and other harmful by-products, like tar and other carcinogens. There is also no second-hand smoke that can harm others.
The lawsuit pointed to recent testimony by Food and Drug Administration Center for Tobacco Products director Mitchell Zeller who said reducing the availability of vape products could present “serious risk” to adults, especially former smokers, who are addicted to nicotine and will move back to smoking combustible tobacco.
The business owners involved in the lawsuit all operate shops that sell electronic nicotine delivery system (ENDS) products.
There are two delivery systems for those products.
The "closed system" — which is mostly owned by legacy tobacco companies and sold in a variety of retail outlets — have higher amounts of nicotine and smaller choices of flavor.
The business owners who have filed suit work under the "open system," which depends on a larger device that is refilled with products that fit consumers’ personal preferences. The businesses are regulated by the state and are not allowed to sell to minors. Their products do not contain marijuana or THC.
ENDS products produce an aerosolized vapor created when a lithium battery activates a heating coil called an atomizer that results in the vaporization of an e-liquid solution. The product allows the user to inhale that vapor through a mouthpiece. The aerosol provides a flavor and physical sensation that is similar to smoking a cigarette.
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While vape products sold in storefronts have been available for about a decade, the health epidemic of severe pulmonary illnesses traced to vaping started this past summer. Up until then, the business owners “verily assert” in the lawsuit that there had not been a single death in the United States attributed to health problems from the use of vaping products.
The business owners said investigations have shown the pulmonary issues were caused by the “illicit addition” of THC or marijuana products — neither of which are permitted for retail sale in the U.S. and are not included as ingredients in any of the products sold by the businesses involved in the lawsuit.
“It is believed that some consumers add their own aftermarket oils to ENDS products, including THC and/or marijuana,” the lawsuit said.
The illegal vapor cartridges that contain THC or marijuana are also reported to have significant amounts of vitamin E acetate, which serves as a diluting and thickening agent. The lawsuit said health authorities have found vitamin E acetate residue in the lungs of patients with pulmonary illnesses attributed to vaping.
“As recently as several weeks ago, scientific thinking was that the vitamin E acetate and other oils contained in these illegal products might not completely transform into vapor when heated, and instead travel into the user’s lungs thus causing pulmonary disorders,” the lawsuit said.
The lawsuit claims the state failed to follow requirements under the Montana Administrative Procedure Act, including minimum notice and comment requirements in issuing the ban.
They also claim the state’s emergency rules were arbitrary and capricious when applied to the open system flavored e-liquid products because they allow the continued sale of combustible tobacco cigarettes, including flavored cigarettes — “which are also illegally used by, and enticing to, youth” — while banning substantially less harmful e-liquid vape products.
The lawsuit seeks a temporary and permanent injunction on enforcing the emergency rule.
In an affidavit, Freedom Vapes co-owner Ron Marshall said he smoked his first cigarette when he was 16 years old and from that point on smoked two packs a day for 31 years.
“Like so many smokers, I was hooked on cigarettes and unable to kick the habit no matter how hard I tried despite making numerous attempts,” Marshall said. “I was blessed to be able to stop smoke cigarettes in September 2013 through the use of an ENDS product, using a peppermint menthol flavored liquid.”
After he and his wife both successfully stopped smoking cigarettes with the help of an ENDS product, they founded Freedom Vapes business in Hamilton in 2014. They now own two other businesses in Bozeman and Belgrade.
Of the e-liquid products they sell, about 95% are flavored. Marshall said the median age of his customers is 35 to 40. The products they offer include the option to “step down” on nicotine. To date, Marshall said 25% to 30% of the stores’ customers have been able to wean themselves off both cigarettes and ENDS products.
If the ban enacted by the Montana Department of Health and Human Services is enforced, Marshall said his three stores will close and all of their employees will be let go.
“In such event, my wife and I will become personally liable for the balance owed for the remaining terms of the three store leases,” Marshall said.
The lawsuit was filed in Ravalli County District Court in Hamilton.