Michigan Vape Bills Would Ban Flavors, Impose 57% Tax

Originally published Jan. 5, 2024

Michigan lawmakers have introduced a series of bills intended to eliminate access to popular flavored vapes and other low-risk nicotine products, and price the remaining products out of reach for many consumers. The legislation, promoted by anti-tobacco and anti-vaping activist groups, is similar to bills previously introduced in the state.

The eight-bill package includes several components that will negatively affect people who vape or use other low-risk nicotine products:

• Bans flavors other than tobacco in all nicotine and tobacco products (SB 649)
• Establishes a 57 percent wholesale tax on all vaping products, nicotine pouches and smokeless tobacco (SB 648)
• May ban online sales to consumers (SB648)
• Repeals preemption of local restrictions on vape or tobacco products (SB 647)

The Consumer Advocates for Smoke-Free Alternatives Association (CASAA) has issued a call to action, asking Michigan residents to contact their state legislators and urge them to oppose the tax and flavor ban bills. Vapers and others who support harm reduction can send a pre-written message from CASAA in seconds, or can replace the pre-written message or modify it with their own thoughts.

The bills have been assigned to the Michigan Senate’s Committee on Regulatory Affairs. Committee hearings on the bills have not been scheduled. The state Senate returns to session Jan. 10.

How would these bills affect Michigan vaping consumers?

While some of the legislation would have little effect on adults who depend on vaping products, the flavor ban and tax would force many vapers back to smoking, and create a black market for products widely acknowledged to be less harmful than combustible tobacco. A 57 percent wholesale tax would be among the highest vape taxes in the country.

The flavor prohibition and tax, if passed, would probably shut down most vape shops, and would eliminate flavored vape and nicotine pouch sales in convenience stores and other outlets. If legislators succeed in banning online sales, consumers in remote areas would be hit especially hard. As in other states that have banned flavored vape products, much of the market would then move underground, where taxes are not collected and age laws are ignored.

Michigan residents who live near the Ohio, Indiana and Wisconsin borders would maintain easy access to popular vape products sold in those states, while many other Michigan vapers would revert to smoking, or be forced to buy potentially substandard products from black market sellers.

Research shows that vapes and cigarettes are economic substitutes; when policies create a market advantage for one kind of product, its sales increase, and sales of the other decrease. Studies show that taxing vapes increases cigarette sales and smoking, including smoking by minors. Banning flavors also increases smoking.

The proposed flavor ban includes menthol cigarettes and flavored cigars, and the tax bill would increase the tax on cigarettes from $2.00 a pack to $3.50. According to the Mackinac Center for Public Policy, 18.2 percent of 2021 cigarette consumption in Michigan involved smuggling, and the think tank says it expects that number to surge beyond 30 percent with passage of the higher cigarette tax.

In addition to expanding the illegal cross-border economy, a ban on menthol cigarettes could create potentially violent interactions between police and minority business employees and customers. Menthol cigarettes are favored by a majority of the black Americans who smoke.

Governor Whitmer and Tobacco-Free Kids vs. Michigan vapers

Democratic state legislators have introduced bills to restrict vaping products in every recent session since Governor Gretchen Whitmer unsuccessfully attempted to ban flavors—first in 2019 with an “emergency” executive order, and then in 2020 with permanent rules imposed by the Michigan Department of Health and Human Services. Both were opposed by Michigan vape businesses.

Those efforts were finally dropped in late 2021, but the Campaign for Tobacco-Free Kids, the Michigan chapter of the American Academy of Pediatrics, the American Cancer Society Cancer Action Network, and other Bloomberg Philanthropies-affiliated anti-vaping groups, have never abandoned their desire to ban flavors and impose other vape restrictions in Michigan.

Similar bills have been introduced in Michigan before, with the same Tobacco-Free Kids-backed publicity and astroturf support. As we explained in 2022, regarding the effort to pass a flavor ban in Columbus, Ohio, the entire operation to promote the laws is run by the Washington-based activist group with funding provided by billionaire Michael Bloomberg’s foundation.

In Michigan, the operation is run by an astroturf group called the Keep MI Kids Tobacco Free Alliance, co-chaired by Tobacco-Free Kids regional advocacy director Jodi Radke. The group is hosting a call to action (offering an easy-to-send pre-written message of support) that is being promoted by Tobacco-Free Kids and Parents Against Vaping e-cigarettes (PAVe). In addition to lobbying legislators directly, the Tobacco-Free Alliance organizes support, and does publicity work for the bill package, like helping place op-eds in local newspapers and setting up local TV news segments.

Gov. Whitmer and her administration have strong links to Bloomberg and Tobacco-Free Kids, but the current effort to tax vapes and ban flavors doesn’t appear to have originated in the governor’s office. However, she supports the bills and will certainly sign them if they pass the state legislature.

Many of the legislators likely to support the proposed Michigan flavor ban are, ironically, strong supporters of legal marijuana in the state. State regulators allow flavored cannabis products—including vapes with added flavors, and edibles that are indistinguishable from actual candy.