Michigan Governor Bans Flavored Vapes by Executive Order

On September 5, reports from CNBC and other foreign media indicated that Michigan Governor Gretchen Whitmer announced a ban on the sale of flavored e-liquids and vaping products in the state, including mint and menthol.

The ban is an executive order lasting six months (with the possibility of renewal) and includes online sales. Retailers will have 30 days to sell existing inventory.

The ban will take effect immediately after the state Department of Health and Human Services issues rules, which may take a few weeks. DHHS will develop permanent rules during the six-month temporary ban.

"My top priority is to keep our kids safe and protect the health of the people of Michigan," Whitmer told The Washington Post. Whitmer stated that the state health department has determined that e-cigarette products constitute a public health emergency. The ban is not a response to the recent outbreak of lung injuries associated with black market THC oil cartridges.

Consumer advocacy group CASAA has issued a call to action, encouraging Michigan e-cigarette users to call the governor's office and use CASAA's simple platform to write to their state legislators to challenge the governor's actions.

Earlier this year, Whitmer signed a law banning the sale of e-cigarette products to minors, making Michigan the 49th state to pass such legislation (although the FDA's 2016 Deeming Rule set the federal minimum age at 18). The law took effect on September 2 and imposes penalties on minors who purchase or possess e-cigarette products.

Whitmer reluctantly signed the age restriction law, expressing concern that lawmakers would not further strengthen additional restrictions on products and promised future actions. In a signed statement, she expressed "significant reservations" about not defining e-cigarette users as tobacco products, fearing they would be exempt from "evidence-based tobacco control," particularly troubled by the flavors of e-cigarettes.

Michigan's adult smoking rate of 19.3% (CDC, 2017) is higher than the national average, with a student smoking rate of 10.5%. However, JUUL and e-cigarette products have made headlines in the past two years, making them a natural target for ambitious politicians.

If the Michigan ban is successful, it will become the first statewide ban in the U.S. Last year, San Francisco became the first city to ban flavored e-cigarettes. Since then, many cities have passed some form of flavor ban. Elected officials in other states, including California and New York, have proposed bans but have yet to pass them.

Surveys show that the vast majority of adult e-cigarette users who have completely quit smoking prefer fruit and dessert flavors over tobacco. Whitmer's actions will affect all flavors except tobacco. It is still unclear whether the governor intends to issue specific guidance on flavorings that can be used in "tobacco flavor," but most tobacco e-liquids use spices other than tobacco.

Flavor bans and other restrictions on e-cigarette products are popular among lawmakers, as the number of e-cigarette users and politically active individuals is very small, and the moral panic over youth e-cigarette use makes e-cigarettes very unpopular among non-e-cigarette users. Politicians seize headlines with little perceived political risk.

The next step may be litigation, but it is unclear who will sue the governor.

"These businesses and their customers will not go down without a fight," said Gregory Conley, president of the American Vaping Association, in a statement. "We look forward to supporting what now appears to be necessary litigation to protect adults' rights to access these harm-reduction products."

Conley added, "In this country, lawmakers make laws, not governors who desperately need media attention. Anyone concerned about the prospect of an out-of-control government would be shocked by the executive branch's unilateral attempt to ban adult products. More absurdly, this ban attempt comes months after the Michigan legislature wisely banned the sale of e-cigarette products to minors."

Conley predicts that a black market will emerge in the state. After all, e-liquids are easy to make.

"Governor Whitmer's ban will create a massive black market for these products worth millions of dollars, conditions that have led to a recent series of lung diseases now clearly associated with illegal THC products. The CDC now specifically warns against using homemade e-cigarette products, but this is a behavior resulting from a ban imposed by the state."