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July 10, 2020

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.

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.

“This is not a decision for DPHHS,” committee member Sen. Jason Ellsworth told Montana Public Radio. “This is a decision for legislators and the people to decide, not for bureaucrats.”

If the DPHHS moves forward with its plans to hold a hearing and accept public comments, it could cause a war between the government institutions. State lawmakers rejected a flavor ban last year, a clear indication that the elected legislature has no intention of ceding its authority to appointed DPHHS officials acting at the behest of Governor Steve Bullock. If the agency attempts to defy the legislature, there’s no telling what might happen.

Gov. Bullock announced an emergency flavor ban last October, following a trend among Democratic governors, several of which had used emergency powers to shut down flavored vape sales. Although it was held up in court, the ban eventually took effect in December and remained in place until April.

The newly proposed ban is supported by tobacco control and medical organizations. A press release from Campaign for Tobacco-Free Kids praised Gov. Bullock and the DPHHS, lauding Bullock’s “strong leadership in confronting the youth e-cigarette epidemic and protecting the health of Montana’s kids.”

Smokers created vaping without any help from the tobacco industry or anti-smoking crusaders, and vapers have the right to keep innovating to help themselves. My goal is to provide clear, honest information about the challenges vaping faces from lawmakers, regulators, and brokers of disinformation. I recently joined the CASAA board, but my opinions aren’t necessarily CASAA’s, and vice versa. You can find me on Twitter @whycherrywhy

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