HELENA — Montana’s health department will begin enforcing its emergency ban on the sale of flavored vaping products beginning next Wednesday, state officials said Friday.
A temporary restraining order preventing the ban from taking effect expired on Oct. 28, the Department of Public Health and Human Services said. The judge who heard arguments on a motion by vaping shop owners seeking a preliminary injunction to block the ban has not made a ruling six weeks after hearing arguments.
“Though the state has thus far declined to enforce the emergency rules pending resolution by the court, the imminent threats to public health and human safety that precipitated the rules are ongoing and demand a public health response,” the health department and Gov. Steve Bullock said in a notice of intent to enforce the emergency rules.
The restrictions include the sale of all flavored e-cigarette products including flavored nicotine, THC and CBD e-cigarette products, both in store and online. The rules do not require businesses to destroy their inventory.
The health department issued emergency rules on Oct. 8, citing reports of lung injury and deaths by people who had used vaping products and concerns that the flavored products were enticing minors to become addicted to nicotine. Officials argued a 120-day ban would give the U.S. Centers for Disease Control and Prevention time to identify the cause of the illnesses and deaths
District Judge Jennifer Lint heard arguments on Oct. 30 and Nov. 1 in Hamilton.
Business owners argued the lung injuries appeared to be caused by black market vaping products and vaping products that contained THC, the psychoactive ingredient in marijuana. They also argued even a temporary ban would put them out of business and that many of their customers were using vaping as a way to stop smoking.
After the hearing, Lint noted that Montana law requires that review of emergency rules “takes precedence over all other matters except older matters of the same character.”
The notice of intent to enforce the rules was filed with the District Court in Ravalli County.
The court will decide when the clock starts on the 120 days, Raph Graybill, the governor’s chief legal counsel, said Friday. The state will argue that the rules have never been in effect so the 120 days should start on Dec. 18, he said.
Fluid samples collected from people who suffered lung injuries, as well as samples from vaping products they had used, contained vitamin E acetate, the Centers for Disease Control and Prevention said. The additive is used as a thickening agent, but when inhaled it may interfere with normal lung functioning.
Federal agencies recommend people not use THC-containing e-cigarette products, particularly those from informal sources like friends, or family or in-person or online sellers. The CDC and the Food and Drug Administration say there may be more than one cause of lung injuries because of e-cigarette use and recommended against using all e-cigarette products.
Through Dec. 10, the CDC has received reports of 2,409 people being hospitalized because of lung injuries and has confirmed 52 deaths. Montana has had seven reported cases, including one death.
Montana’s Department of Public Health and Human Services is investigating additional cases and is concerned that the level of youth use of and addiction to nicotine remains unchanged.
“An alarming number of young Montanans are getting addicted. People are still getting sick,” said Sheila Hogan, director of the health department. “Pediatricians and public health officials agree that this crisis cannot continue unaddressed.”