Today, Governor Grechen Whitmer (D-Mich.) announced plans for the first-in-the-nation statewide ban on the sale of flavored electronic cigarettes and vapor products. Her unprecedented actions were announced as part of a “public health emergency,” which she argues gives her the power to implement a ban without legislative approval. If implemented, this ban will destroy thousands of jobs, send hundreds of thousands of ex-smokers back to combustible cigarettes, and could create political turmoil in the swing state of Michigan.
A version of the “Protection of Youth from Nicotine Product Addition Emergency Rules” obtained by Americans for Tax Reform sheds light on the shaky basis for the use of an “emergency” for prohibition. In the rule to be filed with the Secretary of State in the coming weeks, the governor argues:
- “Youth who use e-cigarettes are more likely to start smoking combustible cigarettes”;
- The youth “epidemic can be attributed to the appeal of flavored vapor and alternative nicotine products”;
- “Prohibiting the retail sale of flavored vapor and alternative nicotine products will result in less product available on the market… which should ultimately result in decreased youth tobacco use.”
The ban applies to all flavored non-combustible nicotine products, including those with mint and menthol flavoring, and makes an absurd jump to over-criminalize the mere possession of vapor products. In an unpublished draft of the rules, “a person who possesses four or more flavored vapor products, or flavored alternative nicotine products is rebuttably presumed to possess said items with the intent to sell,” a misdemeanor offense and punishable with up to 6 months in prison in the state of Michigan.
Criminalizing the possession of as few as four e-cigarettes flies in the face of voters’ growing sentiments about personal choices when it comes to consumer products, namely marijuana. In 2018, Michigan became the 10th state in the country to legalize the recreational use of marijuana when 56% of voters approved the Michigan Regulation and Taxation of Marihuana Act. The voter initiative legalized possession of up to 2.5 ounces of cannabis and allows homeowners to grow up to 12 plants of marijuana in their homes. Dispensaries are expected to open soon.
The pending ban of nicotine-containing e-cigarettes and new legalization of THC/marijuana, which can be consumed through e-cigarettes is puzzling. Adults in Michigan in 2020, under Gov. Whitmer’s agenda, will be able to smoke to get high but not vape nicotine to reduce their dependence on combustible cigarettes.
Beyond consumer product liberalization paradoxes, this move also stands to harm public health. Millions of adults are using flavored e-cigarettes that contain nicotine to reduce or eliminate their dependence on cigarettes, the use of which results in the premature death of more than 400,000 American adults annually. The growing global scientific consensus is that compared to combustible cigarettes, e-cigarettes are at least 95% less harmful than cigarettes, a fact even acknowledged by the American Food and Drug Administration. Removing these products from store shelves will leave hundreds of thousands of current and former smokers few options other than to continue or return to smoking cigarettes, products untouched by the governor’s planned ban.
It should be noted that the basis of the governor’s ban is without merit on grounds of a “gateway effect” for vaping as well. Contrary to her claims, e-cigarettes have not proven to be a gateway to smoking, evident by the fact that despite youth experimentation with the products, smoking rates among teens has fallen in recent years. In fact, new data from the 2018 National Survey on Drug Use and Health found that only 2.7% of adolescents aged 12 to 17 reported smoking cigarettes in 2018, down from 3.2% in 2017. Even more compelling is the fact that youth initiation of cigarette use declined from 2.4% in 2017 to 2.3% in 2018. Overall, there has been a 79% decline in cigarette smoking since NSDUH first measured use in 2002.
Data from the 2018 Monitoring the Future survey indicated a similar decline in use of cigarettes, down from 5.4% in 2017 to 4.6% in 2018 among 8th, 10th, and 12th graders (which included 18-year-olds who can legally smoke). This same survey indicated that past-month use of marijuana for seniors in high school stood at 22.2%, compared to 7.6% of seniors who had reported smoking cigarettes in the past month.
Going even further into the available data to include the use of all traditional tobacco products (cigarettes, smokeless tobacco, cigars, and pipe tobacco), just 4.2% of adolescents aged 12 to 17 reported use of these products in 2018, down from 4.9% in 2017 according to the NSDUH.
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There is no basis for the governor’s claim that adolescent experimentation with e-cigarettes is resulting in higher smoking rates among teens. As such, limiting the options that adults have in the consumer marketplace is clearly an attempt to generate national headlines in the name of a fake “public health emergency” without regard for the law, context for the use of other products, or public health consequences.
Jacob Sullum at Reason notes, “Whitmer’s e-cigarette ban rests on a breathtakingly broad reading of her authority to make emergency rules in the name of ‘public health,’ however she defines it.”
Even if the Republican-led legislature in Michigan fails to intervene, it is not likely that businesses or consumers will sit idly by as prohibition comes to pass.
The Vapor Technology Association responded to the announcement by saying that it “will evaluate every option at its disposal, including litigation, to prevent implementation of this ban. The Governor’s unprecedented misstep will force a mass exodus of products from the market and will result in what the Food & Drug Administration (FDA) itself has described as “a public health crisis” as a result.” VTA estimates that more than 1,200 jobs are and $51 million in state and local tax revenue is on the line with this decision.
The American Vaping Association responded by saying, “These businesses and their customers will not go down without a fight. We look forward to supporting the lawsuits that now appear necessary to protect the right of adults to access these harm reduction products.”
Reports suggest that once finalized, the rule will provide retailers 30 days to clear out their inventory of flavored vapor products and will remain in effect for six months before subsequent regulatory and legislative actions are required.