Michigan will become the first state to ban nearly all flavors of e-cigarettes under emergency rules announced Wednesday by Governor Gretchen Whitmer, a move sure to face a challenge in court.
The Department of Health and Human Services will file the rules in the “next few weeks,” Whitmer Press Secretary Tiffany Brown said. Those rules would take immediate effect, though retailers would have 30 days to sell their remaining products, and last for six months with the potential for one six-month extension.
Whitmer said she took the action after the state’s chief medical executive, Dr. Joneigh Khaldun, issued a finding that youth use of e-cigarettes constitutes a public health emergency. The emergency rules will ban the sale of flavored nicotine vaping products in retail stores and online and prohibit what Whitmer called “misleading marketing of vaping products” such as terms like “clean,” “safe” “and healthy.” Whitmer said she also ordered the Department of Transportation to enforce existing law barring the advertising of vapor products on billboards.
The only permitted flavor will be tobacco. Two of the most popular, mint and menthol, would be banned. Menthol combustible cigarettes would remain available, however. Lynn Sutfin, spokesperson for DHHS, said while rates of youth vaping are rising rapidly, that is not the case for youths using smoking tobacco or combustible cigarettes, and that is why there was no finding of an emergency on menthol cigarettes.
The administration’s action provoked a furious response from the vaping industry, which has long promoted e-cigarettes as a safer alternative to combustible tobacco products and promises of a lawsuit. Health groups hailed the Whitmer administration’s action.
Khaldun’s “finding of emergency,” dated Friday cites a 900 percent increase among high school students in e-cigarettes from 2011-15 with a 78 percent increase from 2017 to 2018. Use among middle school students increased 48 percent from 2017-18. She said a cross-section of 39 Michigan counties saw anywhere from a 30 percent to 118 percent increase in use among high school students who used an e-cigarette in the past month. Khaldun further noted that the U.S. surgeon general in 2018 official declared e-cigarette use among youth an epidemic.
Further, Khaldun cited a study in the Journal of American Medicine where 64 percent of middle and high school tobacco users said they had used a flavored tobacco product in the past month. She said the epidemic can be attributed “in large part” to the appeal of flavored vapor and alternative nicotine products to youth.
“As governor, my number one priority is keeping our kids safe,” Ms. Whitmer said in a statement. “And right now, companies selling vaping products are using candy flavors to hook children on nicotine and misleading claims to promote the belief that these products are safe. That ends today. Our kids deserve leaders who are going to fight to protect them. These bold steps will finally put an end to these irresponsible and deceptive practices and protect Michiganders’ public health.”
The Whitmer administration cited the Public Health Code’s provision allowing the DHHS to “exercise authority and promulgate rules to safeguard properly the public health” in empowering the use of rules to ban flavored e-cigarettes instead of requiring a statutory change, which would require legislative approval. The Legislature has no power to block administrative rules.
Whitmer’s action comes months after the Legislature sent a bill to her desk banning the sale of e-cigarettes to minors. Ms. Whitmer signed that bill over the objections of the DHHS, which preferred a more wide-ranging bill regulating e-cigarettes as a tobacco product, a move that would have made e-cigarettes subject to the workplace smoking ban and tobacco taxes in addition to barring their sale to minors. The Legislature has fiercely resisted a more far-reaching approach, however, and Whitmer said she signed the legislation reluctantly.
PA 17 of 2019 and PA 18 of 2019 banning the sale of e-cigarettes to minors took effect Monday.
In recent weeks, stories of vaping illnesses have broken across the nation, raising questions about the health effects of e-cigarettes, which have been marketed as a safe alternative to smoking. The Michigan DHHS is investigating six cases of vaping/e-cigarette-associated respiratory illnesses.
An organization called the American Vaping Association, sponsored by several e-cigarette makers, slammed the effort.
“This shameless attempt at backdoor prohibition will close down several hundred Michigan small businesses and could send tens of thousands of ex-smokers back to deadly combustible cigarettes,” said Gregory Conley, association president. “These businesses and their customers will not go down without a fight. We look forward to supporting the lawsuits that now appear necessary to protect the right of adults to access these harm reduction products.”
Whether a lawsuit would be filed in state court and/or federal court was unclear. A case in state court would likely focus on whether DHHS has the authority to ban flavored e-cigarettes via administrative rules. A federal court case could focus more on whether the state has regulated interstate commerce, something only Congress can do.
Conley said the state of New York attempted in 2018 to ban flavored vaping products without legislative approval, but then withdrew the effort amid questions of legal authority.
Attorney General Dana Nessel, however, praised Whitmer’s action and said the Department of Attorney General would continue to work to keep e-cigarettes away from those under 18.
Austin Finan, a spokesperson for JUUL Labs, one of the biggest makers of vaping products, said the company already has stopped selling its non-tobacco/non-menthol based JUULpods to retail stores, agreeing there is “no place for kid-appealing flavors in the marketplace. That is why we would also support an outright ban on such flavors, including those that mimic kid-specific candies, foods, and drinks.”
However, Finan said menthol-based products, including mint, should remain available “alongside tobacco and menthol-based cigarettes” to encourage people to switch from combustible cigarettes to e-cigarettes. The company supports laws prohibiting the sale of such products to those 21 and older, Finan said. He said the company has “not reviewed the full decision.”
Rep. Beau LaFave (R-Iron Mountain) derided the governor as “Emperor Whitmer” in taking the action via administrative rules.
“This is a non-Democratic product by which Emperor Whitmer has decided to bypass lawmakers to completely ignore the rulemaking process by you would establish rules and as a manufactured crisis for political gain,” he told reporters.
LaFave said the ban on minors using e-cigarettes just took effect. Whitmer’s action “only prohibits adults from having flavored nicotine.”
But Amber McCann, spokesperson for Senate Majority Leader Mike Shirkey (R-Clarklake) said there is no interest by the Legislature to challenge the governor’s emergency rule. All the Legislature could do would be to pass a bill overriding the rule, but Ms. Whitmer would have to sign it.
“The majority leader shares her concerns about this product and its effect on young people,” McCann said.
Many organizations devoted to public health lauded Whitmer’s action. They had hoped for a more far-reaching bill regulating e-cigarettes as a tobacco product instead of the bill Whitmer reluctantly signed simply prohibiting the sale of vapes to minors.
“Our member hospitals have been asked by schools to specifically focus on prevention of e-cigarette use as they develop their community health priorities, and we believe these executive orders will support those prevention efforts as well as help current users quit,” said Brian Peters, CEO of the Michigan Health and Hospital Association. “As a mission-driven organization whose focus is advancing the health of individuals and communities, we applaud Governor Whitmer on today’s actions and look forward to continuing to partner with the State to improve the well-being of our residents.”
Amy Zaagman, executive director of the Michigan Council for Maternal and Child Health, said Whitmer’s action will help protect pregnant women and children.
“We salute an end to the charade that e-cigarettes are anything other than nicotine delivery devices with significant risks to developing brains,” Zaagman said in a statement. “Use of e-cigarettes by pregnant women poses the same risks as tobacco to her baby including low birth weight, lung and brain damage. Babies born into homes where vaping occurs are more likely to suffer respiratory illnesses and are at higher risk of sleep-related death. We anticipate the governor’s action will send a clear message that e-cigarettes are dangerous.”
And a joint statement from the American Academy of Pediatrics, American Academy of Pediatrics Michigan Chapter, American Cancer Society Cancer Action Network, American Heart Association, American Lung Association and Campaign for Tobacco-Free Kids and Truth Initiative called Whitmer’s action “necessary and appropriate,” saying the U.S. Food and Drug Administration has been too slow to act.
State and local law enforcement will work with the department’s tobacco division to enforce the rules, Sutfin said. On how the state could regulate online sales, she said the emergency rules, when issued, would address that matter.
Speaking to reporters Wednesday, Whitmer was asked why it was necessary to ban flavored e-cigarettes for everyone if the main concern is child use. She said the state is confronting a public health crisis from vaping and flavored vapes are the main driver.
“We’re letting these companies target our kids, appeal to our kids and deceive our children, and they’re showing up with respiratory illnesses no one can explain,” she said. “The flavored is created and appealing to children. Bubble gum flavor, fruit loop flavor, Mott’s apple juice flavor. These are things that are targeted toward children, toward getting them addicted, creating consumers for them so they can make money at the risk of children’s health.”
Whitmer said flavored e-cigarettes are not shifting children from combustible cigarettes but creating new users. As to why the state should not first focus on enforcing the new ban on selling e-cigarettes to minors, Whitmer said the flavors enticing children.
Whitmer insisted her move would hold up in court.
“I’ve consulted my lawyers. I’ve consulted the attorney general. I think we are squarely on solid legal footing on this,” she said.
On the concern from JUUL about the prohibition on menthol, Ms. Whitmer said, “There will still be access for e-cigarettes just not the flavored ones.”
This story was published by Gongwer News Service.