Montana Health Dept and Legislature Go to War Over Flavor Ban

The Montana state health department intends to ban flavored vaping products, but the state legislature says it can only be done by elected lawmakers. The fight between the two may precipitate a constitutional crisis in the state, leading to a court battle.

The Montana Department of Public Health and Human Services (DPHHS) announced in June its intention to ban flavored vapes by passing a rule—all predicated on the supposed epidemic of youth vaping in the state. The agency has scheduled a public hearing on July 16, and is accepting public comments until July 24. If you’re a Montana resident, please click the CASAA call to action below for all the details on how to respond to the flavored vape ban.

The proposed rule bans the sale of all vapes except unflavored and tobacco-flavored products, including bottled e-liquid. The DPHHS employs a variety of questionable claims and cherry-picked data to support its claim that allowing these products to be sold—even in age-restricted stores—endangers the welfare of Montana teenagers. The agency further asserts without evidence that adult vapers “are likely to switch to tobacco-flavored e-cigarettes if they are the only product on the market.”

However, the Economic Affairs Interim Committee of the state legislature, a joint House-Senate committee that meets between legislative sessions, says the DPHHS doesn’t have the authority to impose a flavor ban. The committee met on July 2, and voted 7-3 to formally object to the health agency’s proposal. The formal objection triggers a requirement for the agency to respond within 14 days.

A letter from the committee to DPHHS Director Sheila Hogan says “the proposed rule is not within the scope of authority that is statutorily conferred” to the agency. The committee states that only the legislature has the authority to impose such a far-reaching prohibition, particularly because of the “widespread deleterious economic impact” it would cause.