LANSING, Mich. — Michigan Gov. Gretchen Whitmer moved Wednesday to make her state the first to ban flavored electronic cigarettes, accusing companies of using candy flavors and deceptive advertising to “hook children on nicotine.”
The Democrat ordered the state health department to issue emergency rules that will prohibit the sale of flavored nicotine vaping products, including to adults, and the misleading marketing of e-cigarettes. Retailers will have 30 days to comply with the rules once they’re filed in coming weeks. The rules will almost certainly be challenged in court.
New York last November began taking steps to bar the sale of flavored e-cigarettes but withdrew proposed rules to allow more time for legal review. The federal government and states ban the sale of vaping products to minors, yet government survey figures show that last year, one in five U.S. high school students reported vaping in the previous month. Top government health officials, including the surgeon general, have flagged the trend as an epidemic.
“Right now, companies selling vaping products are using candy flavors to hook children on nicotine and misleading claims to promote the belief that these products are safe. That ends today,” Whitmer said in a written statement, noting that Michigan’s chief medical executive determined that youth vaping constitutes a public health emergency.
As of last week, 215 possible cases of severe pulmonary disease associated with the use of e-cigarettes had been reported by 25 states, according to the Centers for Disease Control and Prevention. Michigan officials are investigating six such cases. Illinois health officials last month said a patient who contracted a serious lung disease after vaping died; they considered it the first death in the United States linked to the smoking alternative.
Whitmer’s announcement drew praise from public health advocates, school groups and Democratic lawmakers, but criticism from organizations that advocate for vaping and some Republicans in the GOP-led Legislature.
“This shameless attempt at backdoor prohibition will close down several hundred Michigan small businesses and could send tens of thousands of ex-smokers back to deadly combustible cigarettes,” said Gregory Conley, president of the American Vaping Association. “These businesses and their customers will not go down without a fight. We look forward to supporting the lawsuits that now appear necessary to protect the right of adults to access these harm reduction products.”
He said the ban would create a “massive” black market. He blamed the recent spate of illnesses on illegal vape pens that contain THC, the compound that gives marijuana its high.
Health experts say nicotine is harmful to developing brains, and some researchers worry addicted teens will eventually switch from vaping to smoking.
The rise in teen vaping has been driven mainly by flavored cartridge-based products such as Juul. The odorless devices can be used discreetly in bathrooms, hallways and even classrooms.
Juul’s executives have disputed allegations that they have marketed their products to teens, declaring that they have taken unprecedented steps to combat underage use of its e-cigarettes.
Nearly 80% of underage teenagers who use e-cigarettes and other tobacco products cited flavors when asked why they took up the habit, according to government research.
Battery-powered e-cigarettes, which have grown into a more than $6 billion-a-year industry, typically heat a flavored nicotine solution into an inhalable aerosol. Juul controls roughly three-quarters of the U.S. retail market.
It’s unclear what percentage of the market may be affected by the ban, which would not apply to tobacco-flavored products. Conley said more than half of vaping products are sold in vape shops, online or from other locations that are largely untracked, unlike those purchased at gas stations and convenience stores.
He estimated that nearly every Michigan vaping shop, however, would lose at least 90% of its sales.
State Rep. Beau LaFave, a Republican from Iron Mountain, criticized the governor’s decision, which came three months after she signed laws barring minors from using e-cigarettes.
“That’s an infringement on adults,” he said. “This has nothing to do with children. This is only about Gov. Whitmer taking her liberal beliefs and feeling that she knows better than everybody else, and they can’t make the decision for themselves.”
Most experts agree the aerosol is less harmful than cigarette smoke because it does not contain most of the cancer-causing byproducts of burning tobacco. But there is virtually no research on the long-term effects of the vaping chemicals, some of which are toxic.
Several national health groups, including the American Academy of Pediatrics, backed Michigan’s planned ban and renewed calls for the Food and Drug Administration to prohibit the sale of thousands of flavored vaping products nationwide.
Also Wednesday, Democratic Sen. Ron Wyden of Oregon announced federal legislation that would tax e-cigarettes in the same way as traditional cigarettes.