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Judge permits Montana’s ban on flavored vaping products to move forward

Sheila Hogan, director of the Montana Department of Health and Human Services

A District Court judge in Montana ruled this week that the state’s temporary ban on flavored vaping products can move forward, calling it a reasonable effort to decrease youth smoking and lung illnesses associated with vaping products.

The Montana Department of Health and Human Services, along with the Missoula City-County Health Department, began enforcing the rules at 1 p.m. Wednesday.

“We have refused to stand idly by while a powerful industry hooks a new generation of users and puts them right in the path of the national outbreak of lung injury and death,” said Sheila Hogan, director of the state health department.

“This has always been about protecting our most vulnerable and we are pleased that the court chose to stand with Montanans and their health by allowing the emergency rules to go forward.”

The state health department announced last week that it planned to begin enforcing an emergency rule restricting the sale of flavored products used in e-cigarettes.

Vape shop owners who sued to halt the Bullock administration’s initial ban on flavored vaping products in Montana earlier this year went back to court this week, asking the judge to confirm her temporary order blocking the ban.

But on Tuesday, Ravalli County District Court Judge Jennifer Lint sided with the state.

“The rule meets the requirements for rational basis because the flavor ban has a rational relation to decreasing youth vaping and thus decreasing cases of EV ALI in minors,” Lint wrote in her decision.

Since the emergency rules were first announced, the state health department has confirmed five additional cases of lung injury caused by the use of e-cigarettes or vaping products, and other cases are under investigation.

The Missoula City-County Health Department said in October that it was ready to enforce the ban once it went into effect. The department has spent the last few months readying for such a ban.

Ellen Leahy with the local health department said it will conduct spot checks on the 189 tobacco retailers across Missoula County to ensure they’re in compliance with the rule.

“Some of that depends on how much we get in complaints,” said Leahy. “These spot checks aren’t meant to be stings. They’re meant for us to figure out if we have widespread compliance with the rule, or what steps we need to take to get the flavored vaping products off the shelves.”

The restrictions include the sale of all flavored e-cigarette products, including flavored nicotine, THC and CBD e-cigarette products, sold in stores and online.

“We appreciate that retailers will be complying with the rule,” Hogan said. “We’ve also heard from convenience stores and gas stations in Montana and they share the same goals of protecting our youth.”