Oregon bans on both flavored nicotine and cannabis vaping products now on hold

Twitter icon

Gov. Kate Brown’s six-month ban on both flavored nicotine and cannabis vape products is on hold with new rulings Thursday by the Oregon Court of Appeals.

“We’re very happy,” said Andrew DeWeese, the attorney representing Herban Industries, which sued over the cannabis vape oil portion of the ban. “It’s a win for the cannabis industry and it is, frankly, a win for the Oregon consumer.”

The court a month ago temporarily halted the ban on only flavored nicotine vaping products. It now has extended that stay and granted a stay covering the ban on flavored cannabis vaping products as well.

The decisions are a major blow to Brown’s efforts to address the vaping-related lung illness epidemic.

“This gives us some surety that the state is in the wrong,” said Paul Bates, owner of one of the companies that sued the state.

Brown moved to ban all flavored vape products through an executive order in October, following two deaths in Oregon from severe lung illnesses connected to vaping.

Nationwide, nearly 2,200 people have fallen ill in the epidemic. Federal health officials have said that illicit vape oils with marijuana’s psychoactive chemical THC are most directly implicated, although some victims reported using only nicotine products. As of Nov. 12, 17 Oregonians have fallen ill, six who used only nicotine vape products and five who used only THC products, according to the Oregon Health Authority.

The stay on the flavored cannabis vape ban was first reported by Willamette Week.

The Court of Appeals action on flavored cannabis vapes came in response to a suit by the Oakland-based company Herban Industries against the Oregon Liquor Control Commission, which licenses and regulates the state’s marijuana industry.

The agency had moved to enact Brown’s order by banning all THC vape oil products containing flavor chemicals, called terpenes, derived from anything but marijuana. The OLCC had said that this would amount to about 10% of the marijuana market.

The court was convinced by the company’s argument that it would suffer irreparable harm.

Herban Industries sells vape oil products under the brand name ‘Winberry’ that, according to the order, contain a proprietary blend of terpenes that mimic those found in cannabis. But because those terpenes aren’t derived from actual cannabis plants, the ban forbade the company from selling them.

More than 80 percent of the company’s revenue comes from flavored Winberry vape cartridges, according to the order. The company argued that because the products are so fundamental to the business, a ban could force it to fire many of its employees. The Court of Appeals agreed.

“The court is persuaded that petitioner has demonstrated that irreparable harm is likely to result unless enforcement of the rule is stayed,” the order said.

The OLCC argued that halting the ban would harm the public, but the court was not convinced, saying there is no evidence connecting non-marijuana flavors to the lung illnesses.

In a separate case, the Court of Appeals found that the state most likely did not have the standing to ban flavored nicotine vape products.

That case was led by the trade group Vapor Technology Association, three Oregon vape companies and Bates, owner of the Portland vape shop Division Vapor.

The Oregon Health Authority in October wrote temporary rules to enact the flavored nicotine vape products portion of the governor’s executive order. The Court of Appeals said that Brown’s command was likely not enough to give the agency the power to write the rules.

The Court of Appeals concluded that vape shops would likely suffer serious harm if the flavored vape product ban remained in place.

The companies argued that the rule could “cause the entire industry in Oregon to be destroyed,” the court order read. The health authority did not dispute that claim in court.

The court cited the basic facts surrounding the vaping-related lung illnesses to reject the agency’s argument that a ban is necessary to protect the public. Most of the lung illness cases nationally involved cannabis vape products, the court order said – not nicotine products. Moreover, the court order said, no evidence has been presented connecting flavored vape products to lung injuries.

e-mail icon Facebook icon Twitter icon LinkedIn icon Reddit icon
Rate this article: 
Regional Marijuana News: