What you need to know about Michigan’s flavored e-cigarette ban

vaping

A ban on the sale of flavored e-cigarettes in Michigan will go into immediate effect once filed, which Gov. Gretchen Whitmer’s aides say will happen in the next few weeks. Stores will have 30 days to remove products from shelves. The ban will last six months and can be extended by the administration for another six months before legislative action is needed. (Shutterstock image)

Nov. 13, 2019: Michigan transplant surgeon calls vaping damage to teen’s lungs 'evil'
Update: Opinion | Gov. Whitmer’s effort to ban vaping products was the right move
Update: It's official: Flavored e-cigarettes are now illegal in Michigan
Update: Critics rip Michigan vaping ban, citing harm to smokers and vape shops

Gov. Gretchen Whitmer made national news on Wednesday by announcing an order to make Michigan the first state to ban flavored e-cigarettes

Here’s what you need to know.

Why the ban?

The Democratic governor said she was moving to protect Michigan children by ordering the state Department of Health and Human Services to issue emergency rules banning the sale of flavored nicotine vaping products in stores and online. 

The order, which Whitmer spokespeople told Bridge will be filed within the next few weeks, will be effective immediately but gives stores 30 days to remove the products from shelves. The rules don’t ban tobacco-flavored electronic cigarettes but forbid advertising that markets them as “clean,” “safe” or “healthy,” according to the governor’s press release.

What’s the problem? 

Whitmer’s move follows a spate of 215 mysterious lung illnesses nationwide, including six in Michigan, that have landed e-cigarette users in emergency rooms. The ban comes amid increased concern that manufacturers are hooking a new generation of young people to nicotine by flavoring e-cigarettes like candy or sweets. A report issued this year by the U.S. Food and Drug Administration found 1 in 5 high-schoolers had vaped in the past month, a 78 percent increase from 2017 to 3.05 million students. Usage increased 48 percent in the same period among middle-schoolers, 1 in 20 of whom had vaped in the past month, according to the report.

Isn’t the sale of e-cigarettes to youths already illegal?

Yes. Just three months ago, Whitmer signed a law banning the sale of e-cigarettes to minors in Michigan. 

Also, the FDA issued national guidelines last year prohibiting the sale of most sweet flavored e-cigarettes in stores frequented by those 18 and younger. 

But there were problems with both state and federal efforts. Statewide, health officials had urged Whitmer to veto the bill because it didn’t define e-cigarettes as a tobacco product, and advocates feared that would create a loophole exempting them from more stringent regulation. 

The federal guidelines don’t ban the sale of e-cigarette flavors like mint, nor do they extend to the sale of vaping products online or forbid the possession of the products by youths.

Is Whitmer’s ban legal? 

The courts may decide, but early indications are that state law supports the move.

A trade group, the American Vaping Association, announced it may challenge the order in court. Last year, New York’s state health department moved to enact a similar ban, but rescinded it amid concerns that only state legislators, not the executive office of government, could forbid the sale of such a product. 

Michael Ong, professor of Medicine and Health Policy and Management at UCLA, told Bridge that industry proponents — including the vaping industry and traditional tobacco companies — have been the major drivers of legal challenges to restrictions on flavored vaping, and may choose to get involved in fighting the Michigan ban. 

“In terms of restrictions on flavors, the tobacco industry has been adamant about protecting mint and menthol flavors from being regulated,” Ong said. 

Some state Republican leaders not only haven’t contested Whitmer’s ban but indicated their support on Wednesday, suggesting that any pushback could come in court, not from the Republican-majority Michigan Legislature.

“The governor is well within her authority to act in this way and is not required to seek consultation nor provide notice to the legislature,” Amber McCann, spokesperson for Senate Majority Leader Mike Shirkey told Bridge via email Wednesday. 

“The majority leader shares the governor’s concerns about the impact of these products on young people.”

Whitmer’s ban coincided with her administration declaring vaping among youths a public health emergency. The Michigan Public Health Code gives the state Department of Health and Human Services authority to create rules that “safeguard properly the public health (and) prevent the spread of diseases.”

The order promised by Whitmer is to last for six months and can be renewed for another six months.

Wait. I thought e-cigarettes are safe?

Safer than cigarettes? Almost certainly. Than not smoking? Not at all.

E-cigarettes have flooded the market faster than science has had a chance to study their health impact. But new studies are quickly emerging warning about their impact, particularly among youths.

E-cigarettes work by heating nicotine to create an aerosol, rather than burning tobacco. Johns Hopkins University research found that traditional cigarettes contain 7,000 chemicals, many of which are toxic. E-cigarettes also have toxic chemicals, but not that many, according to the research. 

But e-cigarettes deliver nicotine in stronger doses than typical cigarettes and have been linked to seizures, cardiovascular problems and lung ailments. 

Some experts believe vaping is as addictive as regular cigarettes, prompting fears that decades of progress in cutting smoking rates – one of the great public health achievements of the past 50 years – will be reversed.

Since 1965, the national smoking rate has dropped from 42 percent to 15 percent of the population, according to the U.S. Centers for Disease Control and Prevention. Even so, smoking-related illnesses still cost more than $300 billion per year in medical care and lost productivity, according to the CDC.

Last year, Britain’s public health ministry launched a campaign to encourage smokers to switch to e-cigarettes, proclaiming that vaping is 95 percent less harmful and nearly two-thirds of smokers quit through e-cigarettes and nicotine replacement.

Not all agree. Ong of UCLA said using flavored e-cigarettes are “probably not going to lead to cessation overall” in smoking rates and encourages new users to begin using nicotine.

“Until there’s a better way forward, this is a situation where it’s important to have a precautionary principle in place,” Ong said. 

Who supports it and who opposes it?

Shirkey and the chairs of the Michigan House and Senate health policy committees, Rep. Hank Vaupel of Fowlerville and Sen. Curtis VanderWall of Ludington, said they share Whitmer’s concern about the impact of flavored products on young people. 

“Vaping has become oriented towards children more than what we ever expected it to be, and I have a concern with that,” VanderWall said. While he would have preferred she loop in the Legislature ahead of time, “I appreciate what the governor’s done and her stance on this.”

Gideon D’Assandro, spokesman for Speaker of the House Lee Chatfield, told Bridge Wednesday he is “disappointed” the governor didn’t include the Legislature in policy planning, though he does not contest the ban is legally viable. 

“Once again, she’s going around the legislature to write policy,” he said. 

Several Democratic lawmakers, including House Minority Leader Christine Greig of Farmington Hills, also voiced support, along with numerous state and national health organizations. Among them: the Michigan Health and Hospital Association, the Michigan Osteopathic Association, the American Academy of Pediatrics, the American Lung Association and its Michigan affiliate, the Michigan Association for Local Public Health, and the American Cancer Society Cancer Action Network.

A spokesman for JUUL, a leading vape company, told Bridge via email that it supports a ban on flavors that appeal to kids such as fruit and bubblegum. 

“There is simply no place for kid-appealing flavors in the marketplace,” the statement said. However, the company opposes including mint and menthol in the ban because those flavors encourage adult smokers to switch to vaping from regular cigarettes. 

Washington D.C.-based conservative advocacy group FreedomWorks said Wednesday the move was “a huge misstep for public health,” arguing it restricts access to products that can help reduce the use of tobacco. 

The American Vaping Association called the ban a “shameless attempt at backdoor prohibition.”

How would the ban impact Michigan retailers and other businesses?

It’s hard to tell. The American Vaping Association said the ban “will close down several hundred Michigan small businesses.”

A spokesperson for the Michigan Retailers Association said its members were “caught off guard by the governor’s order,” and are looking for more information about what retailers should do with their current vape inventory. 

Other business groups, including the Michigan Chamber of Commerce, the Small Business Association of Michigan and Business Leaders for Michigan, did not immediately respond to request for comment Wednesday.

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Comments

Carl
Thu, 09/05/2019 - 8:57am

Government overreach. Prohibition. Weak science. Yes many will support this over reach because of the "children." Highlights of those speaking against this nonsense ..

The emergency that supposedly requires Whitmer's ban is the recent surge in e-cigarette use by teenagers. Yet selling e-cigarettes to minors is already illegal in Michigan, and Whitmer, notwithstanding her avowed interest in protecting "public health," is giving no weight to the interests of adult smokers who have switched to vaping, a much less hazardous source of nicotine, or are thinking about doing so. The e-cigarette flavors that she thinks are enticing "children" are indisputably popular among adults, many of whom say flavor variety is important in the process of replacing cigarettes with a far less dangerous alternative that delivers nicotine without tobacco combustion products.

Lynn Sutfin, a spokeswoman for the Michigan Department of Health and Human Services, says the governor's order "has not been finalized yet," but she referred me to Section 333.2226(d) of the Michigan Public Health Code, which says the department may "exercise authority and promulgate rules to safeguard properly the public health." The code does not define "public health," and it says, "This code shall be liberally construed for the protection of the health, safety, and welfare of the people of this state." Last Friday, the department made a "finding of emergency" that says "a vaping crisis among youth" justifies "the promulgation of emergency rules."

That finding does not cite any specific statutory authority for such "emergency rules." But according to Chelsea Lewis, the governor's deputy press secretary, the health department is relying on its general authority under Section 333.2226(d), combined with Section 24.248 of the Administrative Procedures Act, which says an agency may issue an emergency rule "without following the notice and participation procedures" that would otherwise apply when it "finds that preservation of the public health, safety, or welfare" requires it and the governor agrees.

In short, Whitmer's e-cigarette ban rests on a breathtakingly broad reading of her authority to make emergency rules in the name of "public health," however she defines it. "The rules will be filed in the next few weeks," Lewis says. "They will take immediate effect once filed."
State Rep. Matt Maddock (R–Milford), chairman of the Joint Committee on Administrative Rules, described the ban, which applies to online as well as in-person sales, as an "Orwellian" edict aimed at "dismantling a legal industry." He added that Whitmer is "essentially usurping the rulemaking process defined by the state Constitution," since "there is no state emergency," and "the governor can't just outlaw bad habits just because she doesn't like them."

BigDCvx
Thu, 09/05/2019 - 9:03am

Vaping...BAD. Pot...GOOD. What??

Diane J
Thu, 09/05/2019 - 10:00am

I quit smoking 3 years ago, I did vape while trying to stop and it did help. As to the ban of sweet tasting flavored vapes, I think it's ridiculous that Michigan feels a need to become a nanny state. We've had government telling us how to dress our kids( no loose strings instead of holding inattentive guardians responsible), restricting some social and activities and more.
Our children are so regulated they can no longer think for themselves or learn that there are consequences to their actions-but then that's what the current political aims seem to be.

abe bubush
Tue, 09/10/2019 - 8:15am

Good move by the Governor, even if it will not stand up in court. It will open the eyes of the rube public to what this stupid junk teen coolness factor is. Far from being a "nanny state" this is simply a responsible adult saying "no" to whiny anarchist children. They will learn eventually, until then we have to protect them from themselves.