Crackdown accelerated: Shops get 14 days to yank flavored vaping items off shelves

Beth LeBlanc
The Detroit News

Michigan's health department accelerated its crackdown on flavored vaping products by ordering retailers to rid their shelves of them in 14 days instead of 30 days under emergency rules released Wednesday.

The rules slash the window for compliance by more than half or 16 days. 

"We determined that 14 days would be an adequate time period for when to begin enforcement," said Bob Wheaton, a spokesman for the state Department of Health and Human Services.

E-cigarette liquid products sits on a display shelf, marked down 30-percent, inside the Corktown Smoke Shop.

The ban is likely to cost The Vape Shop in Hazel Park "tens of thousands of dollars," but the abbreviated timeline for enforcement worsens the expected losses, said owner Peter Calkins. 

"I’m going to lose all my life savings, everything’s down the drain," Calkins said. "I already have places in Florida calling me to buy all my stuff for less than wholesale. There’s already people trying to capitalize on my misfortune.”

The flavored vaping ban announced in early September by Gov. Gretchen Whitmer would prohibit the sale of all flavored e-cigarette products, with the exception of tobacco flavored products, to combat a reported increase in youth usage of the product.

Since Whitmer’s announcement, President Donald Trump and California Gov. Gavin Newsom have announced similar plans. New York leapfrogged Michigan and on Tuesday became the first state to implement its emergency flavored vaping ban after a vote by its Public Health and Health Planning Council.

“For too long, companies have gotten our kids hooked on nicotine by marketing candy-flavored vaping products as safe,” Whitmer said in a statement. “That ends today. This bold action will protect our kids and our overall public health.”

The Michigan Chamber of Commerce is reviewing the new set of rules, but remains concerned about the process through which it was implemented, said Dan Papineau, director of tax policy and regulatory affairs. If there's an issue with youth vaping, there should be deliberative process to address it, he said. 

"If we want to have a conversation about the problem, let’s do it," Papineau said. "But this seems like a really swift and strong action. ... It’s a legal product and to issue a ban on a legal product to the extent that this rule set will do is concerning."

The vaping industry has also been critical of the ban and what it may mean for smoking cessation efforts in Michigan. 

A group of manufacturers and retailers in Michigan have plans to challenge the rules, specifically the implementation of the guidelines through executive order, said Gregory Conley, of the American Vaping Association, a non-profit advocating for vaping as a smoking cessation tool.

"We don’t think she has the authority to do this, and there will be a lawsuit seeking a preliminary injunction filed before this can take effect," Conley said. "They aren’t elected to make unilateral decisions to ban products. Imagine what else a governor could ban if this is approved by the Michigan court system?”

Defend MI Rights, a group of small business owners and associations in the vaping industry, is disappointed Whitmer wouldn't consider testimony at a hearing on the ban last week, said Andrea Bitely, a group spokeswoman.

The hearing included "clear evidence demonstrating that this ban will turn adults back to combustible cigarettes, create a dangerous black market and destroy a legal industry that includes hundreds of small businesses and thousands of employees across the state," Bitely said in a statement.

Tom Wasilewski, a member of Defend MI Rights and owner of E-Cig Outlet, expects he has between $260,000 and $270,000 in flavored e-liquid product at his four locations in Muskegon, Ludington and Big Rapids.  He has been in business since 2013. 

The idea that 14 days is an "adequate" period to sell off product is "ridiculous," Wasilewski said. 

"Fourteen days is not even close to enough time to get rid of our e-liquid; I don’t think six months would be," he said. "We would have done this weeks ago if we would have known the 30-day sell off period started then.”

The damage for Calkins are likely to be larger than most, he suspected, because The Vape Shop carries twice as much product as other vape shops. 

"Juice will probably be easy to sell, but all of the hardware, no one’s going to buy it because they have no juice to put in it," he said.

The rules would apply to online and other remote sales methods as well as to the roughly 200 shops in Michigan.

In addition to banning the sale of flavored products, businesses would be prohibited, where possible, from advertising for vaping products within 25 feet of the point of sale or 25 feet from candy, food or drink. Violations of the rule would be treated as misdemeanors, punishable by up to six months in jail and/or a $200 fine. 

The rules filed Wednesday appear to nix a provision in an earlier draft that would presume a person in possession of four or more flavored vaping products has “the intent to sell.”

The emergency rules filed Wednesday are effective for 180 days and could be extended an additional six months. Along with the emergency rules, the department will begin promulgating permanent rules to govern e-cigarettes.

The Legislature in June passed laws that would prohibit kids from smoking e-cigarettes. Although signing them, Whitmer criticized them as not going far enough.

Her flavored vaping ban has been met with strong opposition from the vaping industry, which has argued that vaping flavors are part of what attract people to the product as a way to quit smoking combustible cigarettes.

"Tobacco flavors are awful," Conley said. "There is a reason why fruit and sweet flavors are the most popular flavors with ex-smokers.”

Critics also have pointed toward inconsistencies in state law that prohibit flavored vaping products, but leave flavored combustible cigars and cigarettes on store shelves and edible marijuana products in provisioning centers.

On Wednesday, Rep. Beau LaFave, R-Iron Mountain, introduced a bill that would prohibit the governor from declaring a public health crisis related to vaping and extends the ban to the federal government. Should Whitmer veto the bill, LaFave said he would lobby to get the two-thirds majority needed to override the governor.