Michigan Flavor Ban Update — What’s Next?
Last Wednesday, Michigan Governor Gretchen Whitmer (D) announced her intention to issue emergency rules to ban the sale of vaping products in all flavors but tobacco. Since then, we have received inquiries from vapers across Michigan and the United States asking for more information about the ban.
A House Oversight Committee hearing will be held on Gov. Whitmer’s planned ban at the State House in Lansing on Thursday, September 12 at 10:30 am.
Heading into that hearing, below are some answers to questions we have received. Expect more news from AVA in the near future.
Is the ban in effect now?
No. Gov. Whitmer’s office has not yet formally issued the emergency rules. On the day of the announcement, her spokesman claimed the rules would be “filed in the next few weeks.”
Once the emergency rules are filed, a 30-day countdown clock begins, during which retailers will be permitted to sell off their stock. After 30 days has passed, all sales of flavored vaping products will be illegal for six months (or until Gov. Whitmer rescinds the order). Gov. Whitmer would then have the option to renew the ban for another six months. After that one year period, the prohibition must be passed by the State Legislature, or it will no longer be valid.
Do we know exactly what products are being banned?
No, but we have a pretty good idea. There is a draft set of rules that were released by someone within the Governor’s office, but these rules are subject to change. Under the draft rules, no non-tobacco-flavored product that fits Michigan’s existing definitions of “alternative nicotine product” or “vapor product” under Michigan’s youth access laws will be permitted to be sold. Nicotine-free e-liquids with flavors other than tobacco would be prohibited as well.
The inclusion of “alternative nicotine product” could lead to products that are not at all related to vaping — like tobacco-leaf-free nicotine pouches Zyn (Swedish Match) and VELO (R.J. Reynolds) — being banned.
Online sales of both vapor products and alternative nicotine products to customers in Michigan would also be prohibited (although enforcement against rogue eBay sellers and other gray market actors is unlikely). We have heard that some online retailers have stopped shipping to Michigan already, but that seems like an overreaction until the emergency rules have been filed.
How can Gov. Whitmer ban flavors?
We don’t think she can. Governors are elected to sign and veto bills, not to make up their own laws.
Over at Reason Online, journalist Jacob Sullum took the time to contact the Michigan Department of Health and Human Services and Gov. Whitmer’s office to ask under what authority the emergency rule was being issued.
[An employee of the Michigan DHHS] referred me to Section 333.2226(d) of the Michigan Public Health Code, which says the department may “exercise authority and promulgate rules to safeguard properly the public health.” The code does not define “public health,” and it says, “This code shall be liberally construed for the protection of the health, safety, and welfare of the people of this state.” Last Friday, the department made a “finding of emergency” that says “a vaping crisis among youth” justifies “the promulgation of emergency rules.”
That finding does not cite any specific statutory authority for such “emergency rules.” But according to Chelsea Lewis, the governor’s deputy press secretary, the health department is relying on its general authority under Section 333.2226(d), combined with Section 24.248 of the Administrative Procedures Act, which says an agency may issue an emergency rule “without following the notice and participation procedures” that would otherwise apply when it “finds that preservation of the public health, safety, or welfare” requires it and the governor agrees.
In short, Whitmer’s e-cigarette ban rests on a breathtakingly broad reading of her authority to make emergency rules in the name of “public health,” however she defines it.
Will there be a legal challenge if necessary?
Yes! We believe Gov. Whitmer’s planned actions are unlawful and would set a dangerous precedent. No lawsuit can be filed until the final rule is announced, but stay tuned.
Attempts are also underway to stop this from happening through the legislative process, but several roadblocks remain. These include Gov. Whitmer’s ability to veto any legislative solution and the lack of regard for vaping consumers and businesses being shown by Senate Majority Leader Mike Shirkey (R-Branch, Hillsdale, and Jackson counties).
What can I do to stop the ban?
If you are in Michigan, the Consumer Advocates for Smoke-free Alternatives Association (CASAA) has released a Call to Action, from which you can both write AND call Gov. Whitmer and, most importantly, your State Representative and State Senator. It is critical your elected officials hear from you and understand this is an issue that matters to you and influences your voting behavior.
If you are a vape business owner, we strongly recommending being persistent in asking for meetings and phone calls with your State Representative and State Senator. Get your customers and employees involved. Consumers can ask for meetings as well. If you are granted a meeting, feel free to get in touch with us, CASAA, or a trade organization you belong to for tips.
If you are outside of Michigan, you can help by spreading awareness of CASAA’s Call to Action and the insanity playing out in Michigan.
What has AVA been doing in the media on Michigan?
When news of Gov. Whitmer’s broke, we released a press release to Michigan media and national beat reporters. Below is a selection of the press coverage that resulted from our press release and numerous calls with journalists. This is by no means an exhaustive list, but this is what is easily accessible online.
National Radio: NPR’s All Things Considered