SALEM — The Oregon Court of Appeals Thursday granted a temporary stay on Gov. Kate Brown’s executive order imposing a 90-day ban on the sale of flavored nicotine and marijuana vaping products.
The ruling came in response to two petitions for injunctions filed with the court against Brown and the Oregon Health Authority seeking judicial review of the ban.
Canby attorney J. Ryan Adams filed one of those petitions Wednesday on behalf of No Moke Daddy LLC, which operates two e-cigarette shops in downtown Portland under the name Division Vapor.
“We believe the governor overstepped her authority by directing (the OHA and OLCC) to enact this ban,” Adams said. “Essentially what we asked the court to invalidate the rule.”
According to Adams, his client decided to file for the injunction because they were worried about the employment impacts the temporary ban would have on what they consider a booming industry that employs thousands of Oregonians across the state.
Brown’s executive order followed a widespread outbreak of acute lung injuries that are being tracked across the country and linked to the use of both marijuana and nicotine vape products. As of last week, more than 1,300 cases had been reported with 26 deaths, two of those happening in Oregon. Last week the OLCC approved temporary rules that were ordered to take effect this past Tuesday, Oct. 15, that would take all flavored vape products off the shelves of approximately 4,000 retailers across the state.
On their website, Division Vapor had posted a message saying they would be effectively out of business as of Monday, Oct. 14, ahead of the ban that came into place the following day.
“This is their entire business,” Adams said. “One of the requirements to enact an emergency rule is the agency has to state a need for the rule and how the rule meets that need. The OHA stated the need for the rule was based on the governor’s executive order, but nowhere in the rule did it say the rule meets the need. That was the basis for us asking the court to stay the rule.”
Adams said that his client is excited they will get to remain in business.
“The employees of the shop are the biggest winners here today,” he said.
The ruling will essentially force the state via the Oregon Health Authority and Gov. Brown’s office to prove that the rule hasn’t violated state statute in exceeding their boundaries while the court reviews the rule.
Neither the Oregon Health Authority or the Governor’s Office were immediately available for comment.