In a rare win for vapers, the Montana state health department will withdraw a proposed rule that would have banned the sale of flavored vaping products (other than tobacco). The Montana Department of Public Health and Human Services (DPHHS) had attempted to bypass the state legislature to impose the vape ban, which would have carried the weight of law.
The agency’s director Sheila Hogan, in a statement Friday, claimed the state legislature needed “more education” on the topic in order to properly protect the state’s children from “the epidemic of e-cigarette use.” However, no amount of “education” from health officials is likely to convince elected legislators to cede their position as the state’s only lawmakers.
The proposed restrictions led to a dramatic standoff between the DPHHS and state legislators. After the health department announced a public hearing and comment period, a joint state House-Senate committee that meets between legislative sessions decided to formally object to the proposed rule. Most Republicans and many Democrats in the conservative Montana legislature were uncomfortable with the administrative agency’s attempt to usurp their constitutional powers. The legislature had voted down a flavor ban bill during the legislative session in 2019.
At a special meeting of the legislative Children, Families, Health and Human Services Committee last week, lawmakers decided to poll all members of the House and Senate on whether the health department ban is “consistent with the intent of the legislature.” Since the lawmakers had rejected a flavor ban last year, the MDHHS rule would clearly not be consistent with their intent.
“We have three branches in our government,” Senator Jason Ellsworth said at the meeting. “We do not have a fourth branch, we do not have a branch called the Department of Health and Human Services, or any other department that can create law.”
The polling procedure is mandated by Montana law when 20 or more legislators object to a proposed rule. The poll would have been conducted by mail-in ballots sent to all 150 legislators if the DPHHS hadn’t withdrawn the flavor rule.
The health department proposed the ban in June with the backing of Governor Steve Bullock, who is currently running for U.S. Senate against incumbent Republican Steve Daines. (Bullock was also an unsuccessful Democratic presidential primary candidate.) The agency (and the governor) apparently backed down rather than allowing the poll of legislators to go forward, which would probably have ended with an embarrassing defeat.
Bullock was one of several governors who imposed an “emergency” ban on flavored vapes last fall, during the outbreak of vaping-related lung injuries. The 2019 Montana emergency flavor ban was postponed by court decisions, but eventually took effect in December and lasted until April of this year.
Four states have passed laws or created rules banning flavored products—Massachusetts, New Jersey, Rhode Island and New York. Florida lawmakers have passed a bill banning flavors that will soon be either signed into law or vetoed by Governor Ron DeSantis.