Michigan Gov. Whitmer Pushes a Permanent Flavor Ban

by Josh Stephenson September 30, 2020

Michigan Governor Gretchen Whitmer is again trying to ban flavored vaping products through executive rulemaking. But this time, instead of a temporary “emergency” rule like the one she sought last year, Whitmer is attempting to impose a permanent ban.

Michigan citizens who vape are actually facing two threats from their state government: Whitmer’s attempt to ban flavors, and an unrelated package of bills from the state legislature that includes a tax and a law mandating the creation of a list of legally available products, which was lobbied for by a tobacco company.

Both actions threaten the availability and affordability of vaping products, but the governor’s proposed flavor ban is the greater and more pressing threat. It needs immediate action by Michigan vapers and vape businesses.

Gov. Whitmer wants to ban e-liquid flavors…again

Gov. Whitmer is proposing a complete ban on flavored vaping products. As with last year’s proposed “emergency” flavor ban , the governor’s action is being advanced through rulemaking by the Michigan Department of Health and Human Services (MDHHS), an executive agency run by the governor.

The rule would permanently ban all flavors of nicotine-containing e-liquid except for tobacco-flavored products. If the rule is adopted, it is unlikely that vape shops in Michigan could survive. That would leave vapers who use flavored products to find them on the black and gray markets or learn to make DIY e-liquid . For most adults who smoke, neither of those are options they will jump through hoops to seek out. However, there’s no reason to believe that determined adolescents will be unable to get hold of flavored products.

The MDHHS will hold an online public hearing Oct. 20, and is accepting public comment until Oct. 23. CASAA has issued a call to action, urging Michigan residents to tell the MDHHS that flavors are an essential feature of vaping for adult vapers. You can make comments through the call to action (linked below), which also has suggestions for what to discuss in your comments, and information on how to take part in the virtual hearing.

CASAA has an excellent series of talking points to consider when writing your comment, including telling your personal vaping story, explaining why flavors work for you, describing what you’ll do if flavors are unavailable, and talking about how vaping improved your health.

Since the MDHHS is supposed to be using science to advance this (obviously political) rule, you might also remind the agency that a recent CDC survey shows that flavors are not a key reason youth try vaping (don’t link the Vaping360 story; use the actual CDC document), but surveys of adult ex-smokers prove that they rely on flavored vaping products (Farsalinos study , Russell study ).

The governor’s proposed rule is being backed by a Campaign for Tobacco-Free Kids front group consisting of dozens of tobacco control, public health, medical, hospital and academic organizations. They’ve hired a powerful public relations firm to push a “petition” supporting the flavor ban, which will be turned over to the MDHHS as individual public comments by the signatories.

After the comment period and hearing, the MDHHS will theoretically have to consider public comments when drafting its final rule, which could take up to a year. The final rule will be approved or rejected by the legislative Joint Committee on Administrative Rules. At that point, the fight may begin all over again.

Gov. Whitmer’s vaping problem

Gov. Whitmer never bothered to attempt advancing her 2019 anti-vaping agenda through the Michigan legislature—not because a flavor ban would have been impossible to pass, but because she wanted to be the first governor to score politically with vaping, and burnish her image in the Democratic Party. (In fact, she beat New York Gov. Andrew Cuomo to the punch by less than two weeks.)

Democrats tend to follow the positions of anti-tobacco activists on the vaping issue, and the Whitmer administration has connections to Bloomberg Philanthropies and Bloomberg-associated anti-tobacco organizations. Whitmer’s political ambitions extend beyond Michigan, but to earn recognition as a future national Democratic candidate she needs to be seen as a bold political trendsetter by national party leaders.

Unlike other governors who followed her flavor ban lead, Whitmer did not position her rule as a response to the lung injury outbreak caused by contaminated illicit THC products . (But her health agency waited until residents actually died from vitamin E acetate-contaminated THC vaping before warning the public that legal nicotine vapes might not be the “only cause”—probably the last state to do that.)

Whitmer’s call for eliminating flavors was based entirely on the “epidemic” of vaping teenagers, which anti-vaping groups claim is caused in large part by flavored vaping products. Her rationale precisely followed the playbook laid out by the Campaign for Tobacco-Free Kids, which is spearheading the national anti-flavor campaign funded by former New York City mayor Michael Bloomberg. In fact, Bloomberg’s $160 million campaign was publicly launched just one week after Whitmer’s emergency ban was announced , leading many to conclude that the Bloomberg/Tobacco-Free Kids campaign and the Michigan flavor ban were coordinated to garner publicity and maximize political impact.

Earlier this month, Whitmer received an award from Tobacco-Free Kids for what that group’s president Matthew Myers called her “leadership in Michigan” that “changed the national debate.” Whitmer’s attempted ban, said Myers, “became the catalyst for other states to act.” In fact, Myers and Bloomberg were the catalysts, and Whitmer was simply the first eager puppet.

Her “emergency” flavor ban was almost immediately put on hold by a state Court of Claims injunction , following hearings at which Whitmer’s lead medical official proved that she knew nothing about vaping except what she had gleaned from Tobacco-Free Kids pamphlets. The injunction has since been upheld twice—first by the Michigan Court of Appeals , and more recently by the state Supreme Court .

Now Gov. Whitmer is back with the same old flavor ban, once again looking to make headlines and please her Bloomberg handlers on the backs of vapers and the small businesses that serve them. And it will be vapers—again—that will have to stop her and her tragically uninformed health agency from succeeding.

Be ready to fight a Michigan House tax bill

The Michigan House of Representatives is considering a package of bills that would add an 18 percent wholesale tax to vaping products , create a licensing system for vaping retailers and a list of products allowed for sale (only products that have submitted Premarket Tobacco Applications and those that have been approved), and provide penalties for retailers selling to minors . There are also bills that change the legal age in Michigan to buy tobacco and vaping products to 21, and restrict some advertising rules.

The bills have already passed the Senate with bipartisan support, and are waiting for a hearing in the House Ways and Means Committee, after having passed another committee. Michigan vaping advocates are hopeful that some of the worst elements can be stripped from the legislation before it goes to the full House for a vote, so although there is no immediate call to action, that may change at any time.

The language in the bill that creates a list of products allowed for sale apparently comes from tobacco company RJ Reynolds (maker of Vuse vaping products), which unsuccessfully attempted to include similar restrictions earlier this year in Missouri legislation.

Vaping360 will update this story with any news about the House bills.

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Article Author: Jim McDonald

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