On Thursday, May 21, 2020, the Michigan Court of Appeals upheld an injunction against an emergency rules issued by the Governor and the Department of Health and Human Services to ban the sale of flavored nicotine vaping products. The decision preserved the preliminary injunction granted by the Michigan Court of Claims back in October 2019 for Fraser Trebilcock client Cary and Mona Lee, owners of A Clean Cigarette.
Judge Jane E. Markey, writing for the Court the Appeals, held that the Court of Claims did not abuse its discretion by granting the preliminary injunction motion brought by the vape shops A Clean Cigarette and 906 Vapor. The order in the shops' consolidated cases held that A Clean Cigarette and 906 Vapor showed a likelihood of success on the merits at this stage of the proceedings after arguing that the state's emergency rules were procedurally invalid.
"Bluntly stated, defendants did not produce evidence that an emergency situation existed such that a period of delay would make any relevant difference in preserving the public's health, welfare, or safety," Judge Markey wrote. "We agree with the Court of Claims that plaintiffs are likely to succeed on the merits regarding their shared request that the emergency rules be declared invalid."