After a day and half of testimony and debate, the fate of Gov. Steve Bullock’s temporary ban on flavored e-cigarettes is in the hands of Ravalli County District Judge Jennifer Lint.
Lint said the decision on a request for a preliminary injunction in the case would be her top priority.
If granted, the injunction that would put the 120-day ban on hold until the merits of a lawsuit filed by three Montana vape store owners and their association could be heard.
In early October, Bullock, a Democrat, directed the Montana Department of Public Health and Human Services to adopt the emergency rules following a nationwide outbreak of pulmonary illnesses related to vaping and e-cigarette use.
As of Friday, the Centers for Disease Control and Prevention reported 1,888 cases and 37 deaths nationwide. In Montana, there have been five reported cases and one death.
The ban on flavored vapor products would have gone into effect Oct. 22 had the lawsuit not been filed.
Instead, it was blocked by a temporary restraining order signed by Lint on Oct. 19. The judge left the courtroom following closing arguments Friday without saying whether that order would remain in place during her deliberations on the injunction.
The emergency rule would require store owners to remove flavored e-cigarettes and vaping juices from their shelves. It would also apply to online sales of flavored vapor products delivered to people living in Montana.
Greg McDonnell of Missoula represents the vape store owners and trade association.
The vape store owners and others who testified on their behalf provided a “pretty darn good argument that they could win at trial,” McDonnell said as he urged Lint to agree to a preliminary injunction that would retain the status quo until the lawsuit was settled.
McDonnell said the state bypassed the legislative process in attempting to adopt emergency rules rather than go through the standard rule-making process that would have allowed the public to have input.
“This rule without notice, without input of the people, is going to shut down a bunch of Montana small businesses,” he said. “Small businesses who don’t sell Juuls. Small businesses that don’t sell THC. Small businesses who are not responsible for any emerging outbreak of any kind.”
The state’s case focused most of its arguments on the health dangers the flavored e-cigarettes posed for a growing number of teenagers who are now using the products.
On Friday, Stanford University School of Medicine professor Dr. Robert Jackler, said two simultaneous epidemics are occurring nationwide related to vaping. One involves the recent rash of pulmonary illnesses and the other is the rapid increase in the number of teenagers getting hooked on nicotine through the use of flavored vapor products.
Up until a few years ago, Jackler said nicotine use amongst teens had been declining, but that changed when flavored vapor products became popular amongst young people.
While it’s not a pleasant experience to learn to smoke a cigarette — “it takes some work and coughing and wheezing” — Jackler said the flavored e-cigarettes with their “smooth, sweet flavor” and “exceptionally high levels” of nicotine has changed the landscape.
“It’s much easier to become addicted to nicotine through a vaping system than cigarettes,” he said. “Vaping has become a teen fad. It’s the thing all the popular kids do.”
While health authorities know that vaping causes inflammation in the lungs, Jackler said it will be decades before the long-term impacts of breathing in the products will be truly understood.
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In defending the need for the emergency rules that would ban flavored e-cigarettes, the state focused on the popularity of those products amongst teenagers and the potential that spike in use would put young people in harm’s way due to the current epidemic of pulmonary illnesses.
“There is a serious problem in this country of too many youth using vape products, and it puts them in the path of people getting sick and people dying,” said Raph Graybill, the governor's chief legal counsel.
While CDC officials have said there appears to be a nexus between THC vaping and the rash of pulmonary illnesses, the agency has not yet determined the exact cause.
“We know that kids like the flavors,” Graybill said. “The flavors may also be popular with adults, but they are the overwhelming choice of young people … No company says, 'come vape because it’s fun to be addicted.' They say, 'come vape because you might enjoy the strawberry rollup flavor.'”
Jackler said the best way to get young people to stop vaping is to take away the flavors that make the experience enjoyable.
"You turn off the spigot," he said.
Graybill said that’s exactly what the emergency rule would do.
“The rules, at their core, remove young people from path from the national outbreak and will give federal authorities time to bridge the gap between now, when they can buy these products … and when the FDA and CDC can review source of the injury and determine whether or not to keep them on the market,” Graybill said.
“There is no question that people are dying in our country because of something common to vaping products,” he said. “People have died and gotten sick using only nicotine products. People have died and gotten sick using nicotine and THC. People have died using only THC … We know the commonality of the harm is vaping.”
The ban would allow the vape stores to continue to sell unflavored or tobacco-flavored nicotine products.
“It’s telling that big companies, like Altria, which owns Juul, have voluntarily pulled back on their flavors … Juul pulled back on flavors entirely except mint and menthol,” Graybill said. “So largest companies in the world have recognized they can get by on selling to their nicotine-addicted customer base unflavored or tobacco-flavored products, which is precisely what this rule does."
But McDonnell argued that if the ban is adopted, the businesses suffer irreparable harm. Store owners said the bulk of their sales come from flavored vapor products.
“These small businesses will go out of business,” he said. “They will be forced to lay off employees, default on their loans and contracts with their landlords, default on leases. They will be crushed financially and personally.”
Their adult clients could also face harm because they are unable to obtain their tobacco cessation products and maybe forced to turn to the black market or mix the ingredients themselves, McDonnell said.
McDonnell said the state failed to prove any correlation between flavored vaping products and the current pulmonary illness outbreak that began near the beginning of summer.
“These products (have) been around 10 years,” he said. “The ingredients have been regulated for more than three years by the FDA. The store owners have been in business five, six and seven years. Why has there been such a sharp increase in this illness? Where’s the correlation? Where is the evidence of the correlation?”
“Instead they argued vaping is bad. Got it,” McDonnell said. “That youth vaping is bad. Okay. Nicotine is bad. Sure. We understand it. We aren’t arguing that.”
“They tried to put vaping on trial, but we’re not here to discuss whether vaping is good or bad,” he said. “That’s not the legal standard for an injunction.”