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Gov’s E-Cig Rules Vaporize Ban On Flavored Alternative Nicotine Products

September 24, 2019

Gov. Gretchen Whitmer’s emergency rules banning flavored e-cigarettes were released Wednesday without a ban on “flavored alternative nicotine” products, which had been in an earlier rules draft.

Rep. Matt Hall (R-Emmett Twp.) called on Whitmer and the Michigan Department of Health and Human Services (DHHS) to drop the ban on the alternative nicotine products, as he hadn’t heard kids were using mints or gum at high levels.

Hall’s House Oversight Committee held a hearing on the proposed rules last week, and the publicly-available testimony documents include a draft of the rules outlawing the sale of a “flavored vapor product, or flavored alternative nicotine product” in Rule 2(1).

The rules DHHS issued Wednesday feature no such reference to flavored alternative nicotine product in Rule 2(1)(a), which had been defined in the draft rules as “any alternative nicotine product that imparts a characterizing flavor.”

Asked about the change, DHHS spokesperson Bob Wheaton said Wednesday at the time the previous rules were being considered in Hall’s committee, “we were still discussing and getting input from people — including legislators — so the final rules reflect the further discussion and input.”

The rules go into effect immediately and give retailers 14 days to comply, which ban them from selling, transporting and possessing flavored e-cigarettes with the intent of selling them. The penalty for breaking the rules is a misdemeanor, with up to six months in prison, a fine of $200, or both, as possible punishments.

In an open letter to the Governor, Hall commended Whitmer for removing two concerns he said were raised in committee. In addition to the alternative nicotine ban, Hall said the Governor also removed the “presumption that possession of four or more products constitutes an unlawful intent to sell,” which Hall said, “could have unfairly criminalized unintentional violations of the rules.”

But Hall raised further concerns about Wednesday’s rules, including moving up the timeline for retailers to comply from the originally mentioned 30 days to 14 days.

Hall also raised an issue with the advertising regulations applying to all vaping and alternative nicotine products, not just flavored ones, saying it “goes far beyond the purported health emergency.” He also said the inclusion of mint and menthol as prohibited flavors is “overly and unnecessarily burdensome.”

Other provisions of the emergency rules include:

– A ban on retailers using “imagery explicitly or implicitly representing” a flavor to sell a vapor product.

– A prohibition of using “fraudulent or misleading terms” to sell vapor products, listing examples such as “clean,” “safe,” “harmless,” and “healthy.”

– A ban on advertisements for vapor products “within 25 feet of the point of sale” and within 25 feet of “candy, foodstuff or soft drinks.”

The DHHS has also filed a request for rulemaking with the intention to finalize permanent rules, as these emergency rules would stay in effect for six months and can be extended another six months. 

“Today’s filing is necessary to protect the public health,” said Dr. Joneigh Khaldun, chief medical executive and chief deputy director for health at DHHS, in a statement. “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.”

The DHHS noted President Donald Trump, as well as New York and California, have followed Michigan in recent weeks in announcing similar actions against flavored e-cigarettes.

Meanwhile, Rep. Beau LaFave (R-Iron Mountain) Wednesday introduced legislation – HB 4996 — to block the Governor from banning flavored vapor products.

“This ban is an over-reach that will potentially make criminals out of adults who are trying to use a safer alternative to kick the habit of traditional tobacco cigarettes,” he said. “This will undoubtedly create a black market for these products which could be even more dangerous to public health.”

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