Whitmer makes Michigan first state to ban flavored e-cigarettes

Lansing —  Michigan will be the first state in the nation to ban the sale of flavored e-cigarette products under emergency rules Gov. Gretchen Whitmer ordered Wednesday in an aggressive attempt to curb youth vaping.

The East Lansing Democrat pointed to flavors like apple juice, bubble gum and Nerds in announcing pending rules that will also prohibit “misleading marketing” of vapor products using terms like “clean,” “safe” and “healthy.”

Retailers will have 30 days to pull banned products off their shelves once the rules are filed later this month, a directive that could spark legal challenges but will be implemented under an emergency finding by the Michigan Department of Health and Human Services.

Gov. Gretchen Whitmer ordered the Michigan Department of Health and Human Services to issue emergency rules banning the sale of flavored nicotine vaping products in retail stores and online.

“This is a health crisis we’re confronting," Whitmer said.  "It would never be permitted if it was cigarettes, but we’re letting these companies target our kids, appeal to our kids and deceive our children."

The governor accused manufacturers of marketing flavored vapes to get young people hooked on nicotine, “creating consumers for them so they can make money at the risk of children’s health. These are kids whose brains haven’t even finished forming.”

Health advocates across the country praised Michigan’s pending flavor ban, but industry and consumer groups argued the rules will force retailers out of business. Some lawmakers accused Whitmer of abusing her authority by calling for emergency rules not subject to legislative review.

E-cigarettes are battery-powered devices that heat a liquid — the juice — into an aerosol that the user inhales. The liquid usually has nicotine and flavoring in it as well as other additives. Even versions that don’t contain nicotine can still be harmful, according to health officials.

The American Vaping Association, which promotes e-cigarettes as a way to help smokers quit traditional cigarettes, blasted Whitmer’s announcement and said it would support any lawsuits challenging the rules.

“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 association president Greg Conley. “These businesses and their customers will not go down without a fight.”

New York’s health department attempted to ban flavored e-cigarettes in 2018 but reportedly rescinded its regulations amid legal concerns.

“No other state has done something like this by rule-making, probably because lawyers will tell most governors that, "Hey, you’re not a king or queen,’” Conley told The Detroit News.

The pending ban on flavored vape products will include online sales, opening Michigan to a potential interstate commerce challenge. But Whitmer said she believes Michigan is "squarely on solid legal footing on this" and expects other states to enact similar rules. 

Attorney General Dana Nessel, whose office would defend the state against any related lawsuits, applauded Whitmer’s move and pledged her department’s “continued and shared commitment to keeping these products out of the hands of our kids."

Retailers have window to comply

Michigan law gives the health department the power to issue emergency rules protecting public health, said Whitmer spokeswoman Tiffany Brown.

The rules will be filed in the next few weeks and take effect immediately, at which point retailers will have 30 days to comply. The rules will last for six months but could be renewed for a second six-month period.

Brown said the ban aims to target “fruity flavored” vapor products on the belief that candy taste entices kids to try vaping and nicotine hooks them. It will not apply to tobacco-flavored vaping juices but will prohibit menthol or mint.

"There will still be access for e-cigarettes, just not the flavored ones," Whitmer said.

The governor is "well within her authority" to enact emergency rules and the state Senate does not have any ability – or immediate plans – to fight that effort, said Amber McCann, a spokeswoman for Majority Leader Mike Shirkey, R-Clarklake.

“We are not contesting the governor’s authority,” McCann said. “The majority leader shares her concerns about this product and how it is impacting young people.”

But Rep. Matt Maddock, a chairman for a joint committee that traditionally reviews administrative rules, called Whitmer's use of an emergency rule an “Orwellian” maneuver that is “dismantling a legal industry.”

“She’s essentially usurping the rulemaking process defined by the state Constitution,” said Maddock, R-Milford. “There is no state emergency. The governor can’t just outlaw bad habits just because she doesn’t like them.”

Whitmer announced the flavor rules three months after signing a law that banned e-cigarette sales to minors. At the time, the governor complained the statute approved by lawmakers did not go far enough to regulate the electronic nicotine delivery devices because it did not define them as a tobacco product.

The order also follows the emergence of vaping related respiratory illnesses, including six suspected cases in Michigan currently under review by the state health department.

The emergency rules could last up to one year, after which Whitmer would either have to work with the Legislature to enact permanent regulations or attempt to codify the flavor ban through the traditional rule-making process, which would be subject to legislative review.

The Joint Committee on Administrative Rules once served as a check on a governor’s quasi-legislative efforts but no longer holds the same power, Maddock said.

“We are no longer an actual barrier between the executive branch and the legislative branch. The most we can do is slow something down or send something back to the Legislature to have them write legislation.”

Public health 'emergency'

Nancy Brown, CEO of the American Heart Association, called the emergency rules a “bold and appropriate action in response to the epidemic of youth e-cigarette use” and the absence of “robust regulation” by the federal Food and Drug Administration.

Other health groups also praised Whitmer’s action, including the American Academy of Pediatrics, American Academy of Pediatrics Michigan Chapter, American Cancer Society Cancer Action Network and the American Lung Association.

The Michigan Department of Health and Human Services on Aug. 30 issued a “finding of emergency” that described a “vaping crisis among youth” and recommended adoption of emergency rules.

"The nicotine in e-cigarettes can rewire the brain to crave more of the substance and create a nicotine addiction," the finding said. "Resulting brain changes may have long-lasting effects on attention, learning, and memory."

E-cigarette usage spiked 78% among high school students and 48% among middle school students between 2017 and 2018, according to national data cited by the state.

“In the past few years, we’ve seen an explosive increase in the number of Michigan kids exposed to vaping products,” Dr. Joneigh Khaldun, Michigan’s chief medical executive, said in a statement.

“This is a public health crisis. These products can contain harmful chemicals that put our kids’ health at risk." 

But a national group called Consumer Advocates for Smoke-Free Alternatives Association called Michigan’s pending rules a “short-sighted and dangerous response” to teen use and respiratory illnesses that may be linked to tainted street products.

Whitmer “is leaping to the prohibition endgame without considering the dramatic negative effect this will have on Michigan's public health,” said CEO Alex Clark. “This regulation will shut down vapor shops that are a source of expert instruction and peer-to-peer support among people switching to smoke-free alternatives.”