Two states now have bans in place on flavored vaping products. And although prohibition of drugs never works and always leads to unintended consequences, the politicians who have enacted these bans through executive action don’t seem interested in the history of drug prohibition—or the welfare of the people who use the products.
Michigan’s Department of Health and Human Services issued rules prohibiting sales of flavored vaping products (except tobacco) today, just two weeks after being announced by Gov. Gretchen Whitmer. Retailers now have just 14 days—not the 30 days originally announced—to sell or remove products before the rule takes effect.
And yesterday New York State’s Public Health and Health Planning Council rubber-stamped Gov. Andrew Cuomo’s ban on flavored vaping products. The New York rule allows the sale of tobacco and menthol flavors. New York vendors also have just two weeks to clear millions of bottles of e-liquid from their shelves.
The convenience stores and gas stations that sell JUUL and vapor products made by tobacco companies will survive the ban, because e-cigarettes are a tiny portion of their business. But dedicated vape shops, which have been serving current and ex-smokers for a decade, have no other products to sell.
For most of them, flavored e-liquid is their most important product, accounting for more than 90 percent of sales, according to several vendors who spoke at yesterday’s New York Public Health and Health Planning Council hearings.
Neither governor followed the normal democratic route of proposing legislation and letting the legislature debate and compromise to reach a workable result—because both governors knew very well that a draconian ban like the ones they proposed would never get through their state legislatures.
Both chose to impose prohibition through executive action by creating “public health emergencies” and bypassing the legislative process. Both bans will be challenged in court. As it stands now, either governor is apparently free to ban any product they don’t like by getting state health agencies to declare a crisis.
“I’m proud that Michigan has been a national leader in protecting our kids from the harmful effects of vaping,” Whitmer said. “For too long, companies have gotten our kids hooked on nicotine by marketing candy-flavored vaping products as safe. That ends today. This bold action will protect our kids and our overall public health.”
The Michigan Department of Health and Human Services bragged about being the first state to propose a ban, though New York beat Michigan by one day in putting a rule on the books. The ban is temporary; it lasts for six months, and can be renewed for another six months. But the DHHS is preparing a permanent rule to be ready before the temporary one ends.
Between the announcement and the final rule, the DHHS removed the criminal penalty for possession that had been included in the preliminary draft. “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,” it said.
That provision of the rule was probably changed because it received a lot of negative attention, including in a Detroit News op-ed by Jesse Kelley and Carrie Wade of the Washington think tank R Street Institute. Criminalizing possession of a smoke-free nicotine product when cigarettes are available in every corner store is bizarre, but no more bizarre than a health department creating rules that function as criminal statutes.
The removal of the possession rule is important not just because it prevents ordinary vapers from being charged with crimes. It also apparently will allow retailers to keep bottled e-liquid in stockrooms while they await the results of lawsuits challenging the rule. According to American Vaping Association President Gregory Conley, a group of vendors are planning to challenge the rule and ask for an injunction to prevent it from taking effect.
The governor had originally said there would be a 30-day period before the rule was implemented—time for retailers to sell off stock. The final rule only gives them 14 days. The final rule also seems to leave the door open to selling zero-nicotine e-liquid, if certain packaging requirements are met, although that isn’t certain.
“Today’s filing is necessary to protect the public health,” said Dr. Joneigh Khaldun, chief medical executive and chief deputy director for health at MDHHS. “Youth vaping is a public health emergency and has been declared an epidemic by the U.S. surgeon general. Nicotine in e-cigarettes is harmful to developing brains and has dangerous long-term health consequences such as heart disease and cancer.”
Nicotine doesn’t cause heart disease or cancer, but that is the level of scientific evidence Gov. Whitmer was offered by state medical officials before making her decision.
The Michigan House Oversight Committee held a hearing last Thursday to examine the governor’s decision. More than 100 vapers and small business owners attended, and those who spoke begged the governor to consider the hundreds of thousands of adult users of vaping products before taking such a drastic step. Apparently she didn’t listen.
Two days after announcing it, Gov. Andrew Cuomo’s state health commissioner took his boss’s flavored vape ban to the Public Health and Health Planning Council. And after hours of grueling testimony from vapers and vaping business owners, the council passed it with just two dissenting votes.
In record time, the governor had accomplished what he has failed to achieve during the past two years through the legislature. And hundreds of business owners, thousands of employees, and hundreds of thousands of customers went to bed last night not knowing what will happen to their lives and their health in two weeks.
Two weeks is how long New York businesses have to sell off their flavored e-liquid. The ban, like Michigan’s, is temporary, lasting 90 days.
Gov. Cuomo and health commissioner Howard Zucker used the outbreak of lung poisonings caused by black market THC oil cartridges as a pretext for the ban, even though New York Department of Health scientists were among the first to identify vitamin E acetate in cannabis vapes as the probable source of the epidemic.
The Health Planning Council hearing was streamed live, and vapers across the country and the world watched live as council members fiddled with their phones and looked bored while small business owners and ordinary people who used flavored vapes poured their hearts out in testimony. It was a brutal reminder that people who use nicotine in any form simply aren’t considered to be stakeholders in this debate.
Speakers from special interest groups like Campaign for Tobacco-Free Kids and the American Heart Association took their turns at the microphone to complain that the ban didn’t go far enough, that menthol too must be included. The AHA speaker told the council to ignore the vapers whose “anecdotal stories just muddy the waters.”
And they did ignore them, except for two council members that voted against the ban. The others were pleased to hand Gov. Cuomo a win, and to kill 700 businesses and an unknown number of people who will go back to cigarettes or never get the chance to switch from cigarettes to a safer product.