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Michigan drops plans for permanent ban on flavored vaping, seeks new fix

Beth LeBlanc
The Detroit News

Lansing — The Michigan Department of Health and Human Services this week abruptly pulled back rules that would have banned the sale of flavored nicotine products in Michigan.

The move prompted the cancellation of a Thursday legislative meeting where Republican lawmakers were expected to question the advance of the proposed rules.

The department had worked for close to two years to develop the permanent rules after Gov. Gretchen Whitmer's controversial emergency rules banning the sale of flavored nicotine products in 2019 were batted down by state courts. 

The department said it pulled back the proposal on Wednesday because it's working on an alternative legislative solution to address youth vaping, one that so far appears to be significantly scaled back from the department's full ban.

"For more than two years, the department has been working on a collaborative and effective public health solution to prevent youth from a lifetime of nicotine addiction," said Bob Wheaton, a spokesman for the Department of Health and Human Services. "During that time, we have worked to find any solution to this issue — whether it be through rule-making or legislation."

The legislative solution the department was referring to is a six-bill package that would impose an 18% tax on liquid nicotine solution used in electronic cigarettes. The package would allow for the sale of flavored vaping products but ban marketing the products toward youth and penalize sales clerks who don't make a "diligent inquiry" about whether a customer is a minor. 

The bill also would change the age requirement for buying tobacco and vaping products from 18 years old to 21, bringing state law in line with recent federal changes. 

The package is similar to one led by Senate Democratic Leader Jim Ananich that passed through the Senate last year, but failed to advance out of House committee. 

“I have been working on bringing clarity and safety to tobacco vape regulations for some time," Ananich, D-Flint, said of the new legislative package. "The discussions continue about how we can best keep kids safe while providing adults reasonable access to the product.” 

When the 2020 package was analyzed last year, the House Fiscal Agency estimated the new 18% tax would general between $7 million and $10 million in new tax revenue in a year. 

"MDHHS remains committed to protecting Michigan youth from the dangers of nicotine use and addiction and appreciates the spirit of partnership within the Legislature to find a solution that accomplishes this important goal," Wheaton said.

The state Department of Health and Human Services' proposed permanent rules would have prohibited the sale of all flavored nicotine vaping products, limited access to products "more appealing to youth" and prohibited misleading terms or statements in vapor product sales. 

"By prohibiting the retail sale of flavored products, less product is available on the market, and the products that are available are substantially less appealing to youth," the department said in a report to lawmakers on the rules.

The department also warned in its report that the department anticipated "that it may act via these rules to restrict the sale and advertisement of other nicotine products."

Lawmakers on the Joint Committee for Administrative Rules were supposed to consider the department's new rules Thursday but couldn't when the department pulled them from consideration a day before the hearing.

Whitmer's previous attempt to ban flavored vaping — vying to become the first state in the nation to ban the product — failed when two vape shops filed a lawsuit challenging it

The Whitmer administration is pursuing rules to discourage the sale of flavored nicotine products in Michigan to minors but has pulled back a proposed permanent ban on the products.

The state Court of Claims halted the implementation of the rules, arguing the department waited too long to issue the emergency rules, undermining the determination that an emergency existed. The decision later was upheld by the state Court of Appeals. The Michigan Supreme Court declined to intervene. 

At the time, Whitmer and Attorney General Dana Nessel said the Court of Claims decision set a dangerous precedent regarding the state’s rule-making authority in times of emergency.