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Lansing — Michigan lawmakers are exploring legislation that would curtail part of Gov. Gretchen Whitmer’s flavored vaping ban by prohibiting the Department of Health and Human Services from banning flavored e-cigarettes with more than 2% nicotine.

The legislation would focus on increased youth vaping usage — the same issue targeted in the existing flavored vaping ban — while still allowing for some adult usage by limiting the flavor ban to products with high nicotine concentrations, said the bill’s sponsor Rep. Steve Johnson, R-Wayland.

The majority of youth tend to use vaping products that contain nicotine concentrations higher than 2%, while adults largely use lower concentrations, except when they’re initially quitting combustible cigarettes, bill proponents said.

The legislation would allow many vaping businesses to stay open since vaping products above 2% nicotine account for a smaller fraction of sales, Johnson said. The legislation seeks to balance concerns regarding increased youth usage with smoking cessation interests and the survival of vaping businesses, he said.

“Is there a way that we can address this that isn’t just throwing out the baby with the bathwater?” Johnson said.

Whitmer’s office, whose emergency ban was stalled last week by court order, said the legislation “stands in the way of crucial efforts to protect our kids from its harmful effects.”

“It should be no surprise to anyone that the governor plans to veto any legislation that restricts the administration’s authority to protect people from a public health emergency,” Whitmer’s communications director Zach Pohl said.

The legislation is a step toward compromise on Whitmer’s emergency ban, which was opposed by many Republican lawmakers and will eventually be replaced by permanent legislation when the temporary rules expire, said Rep. Michael Webber, R-Rochester Hills.

Additional legislation is expected and Johnson’s bill could be a part of the “final package,” Webber said.

“I think there’s middle ground between where we’re at now with this ban and obviously where we were prior to the start of the year,” he said.

Whitmer's administration initiated the rules in September to combat an uptick in youth e-cigarette usage. Michigan was the first to announce such an initiative, but other states and President Donald Trump announced similar initiatives soon afterward.

Whitmer has vowed to appeal last week’s state Court of Claims ruling that granted a preliminary injunction on the ban's implementation and enforcement to vape shop owners who argued they would be irreparably harmed.

They argued the process Whitmer used to implement the ban was inappropriate and that there was “no genuine emergency” that would justify the issuance of emergency rules. The Democratic administration initially said shop owners would have 30 days to pull the banned products off of shelves by Oct. 2, but subsequently shortened it to 14 days.

Less than 20% of sales at 906 Vapor in Houghton involve product containing nicotine concentrations higher that 2%, said Marc Slis, the shop’s owner. While Johnson's bill would cut into those sales, Slis acknowledge that a nicotine cap — not a complete ban — would be A constructive first step in addressing the youth vaping crisis.

“Primarily, that is what they use,” Slis said. “And this is why they’re using it, not for the flavors.”

eleblanc@detroitnews.com

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