Vapor Technology Association et al. v. Oregon Health Authority
Vapor Technology Association et al. v. Oregon Health Authority (Oregon Court of Appeals, Nov. 14, 2019): An Oregon appellate court blocked an effort by Oregon Health Authority (OHA) to promulgate a temporary rule banning the sale of flavored nicotine vaping products. The court temporarily stayed the rule, pending judicial review, finding that petitioners (e.g., the vaping industry) were likely to succeed on their claim that the rule exceeded OHA’s statutory authority. Although Oregon law gave OHA “direct supervision of all matters relating to the preservation of life and health of the people,” neither these powers, nor the Governor’s executive order, granted OHA such rulemaking authority. Additionally, petitioner’s claim that there was a likelihood of irreparable harm to petitioners, including destruction of the industry in the state, was uncontested. The court rejected OHA’s argument that the public would be harmed if the rule was blocked. The court deemed that any connection to national vaping related deaths and lung injuries was speculative because vaping flavors had not been shown to cause these harms. Instead, the court found the rule could potentially harm the public because some vaping customers would return to “smoking combustible cigarettes” or black market products. The court later issued a similar order relating to cannabis vaping products. Read the decision here.
View all cases in the Judicial Trends in Public Health – December 13, 2019.