Enforcement of Michigan's flavored vaping ban begins Wednesday, which means vape and tobacco shops and online retailers will no longer be able to sell flavored e-cigarettes in the state without penalty of fines and possible jail time.
Gov. Gretchen Whitmer announced the flavored vape ban Sept. 4, in response to what she said is a public health emergency among kids using vaping products, making Michigan the first state to do so.
The ban is administered by the Michigan Department of Health and Human Services with direction from Whitmer and instituted through Michigan's administrative rules process, which allows state agencies to create regulations or policies that, once authorized, act as laws.
Here's what you need to know as Oct. 2 approaches:
Question: What are the rules in the flavored vaping ban?
ANSWER: Retailers, vape re-sellers and distributors will not be able to characterize vape products as safe, clean, harmless or healthy.
They also cannot sell, offer to sell, distribute or posses with intent to sell any e-cigarette product that has a "characterizing flavor," other than nicotine. It includes any flavors related to any food or drink, such as fruit, chocolate, vanilla, honey, candy, cocoa, desserts, alcoholic beverages, mint, menthol, wintergreen, herbs or spices.
In addition, advertising for vape products will be limited so they are:
- Not within 25 feet of the point of sale. Where this cannot be achieved, they must be placed at the greatest possible distance from the point of sale.
- Not with 25 feet of candy, food or soft drinks. Where this cannot be achieved, they must be placed at the greatest possible distance from the point of sale.
- Not "readily seen" by a person standing outside the building at a distance of 25 feet.
Q: What's the penalty for selling flavored vapes?
A: Violating the rules of the ban could result in a misdemeanor, punishable by up to 6 months in prison or a fine of up to $200 or both.
Sales of flavored vape products will be punished on a cumulative per-item, per-transaction basis.
Violations of the advertising ban are calculated daily, with each 24-hour period counting as a separate violation.
Q: Is this a permanent ban?
A: No. The rules are effective for 180 days, which means the ban will continue only until March 30, 2020. After that, the ban can be extended for an additional six months.
After the time runs out, Whitmer could go through the formal rules process through the Legislature’s Joint Committee on Administrative Rules to continue the ban or ask the Legislature to enact a bill that would enshrine it in state law.
Q: Wasn't selling e-cigarettes to minors already illegal prior to the ban?
A: Yes. On June 4, Whitmer signed Senate Bills 106 and 155, which prohibit the sale of e-cigarettes and other non-traditional nicotine products to minors. In her signing message to the Legislature, the governor criticized the legislation for not going far enough to protect Michigan’s kids from nicotine addiction, calling the marketing, packaging, and taste of e-cigarettes a “bait-and-switch” engineered to “create new nicotine addicts.”
Q: Why did the governor think that sales of flavored vapes are a public health emergency?
A: In her announcement of the ban, Whitmer pointed to research that shows e-cigarettes, also known as vapor products or vapes, are the most commonly-used tobacco product in the United States. Nationally, their use rose 900% among middle school and high school students between 2011-2015.
Sharp increases in the use of e-cigarette products among high-schoolers were reported in Michigan from 2015-2016 and 2017-2018, with counties reporting an additional 30% to 118% increases, according to the MDHHS.
"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," Whitmer said in a statement announcing the ban. "That ends today. Our kids deserve leaders who are going to fight to protect them. These bold steps will finally put an end to these irresponsible and deceptive practices and protect Michiganders’ public health."
In addition, a national outbreak of 805 e-cigarette-related lung infections are now under investigation in 46 states and one U.S. territory, according to the U.S. Centers for Disease Control and Prevention, and has caused 12 deaths.
The CDC, the U.S. Food and Drug Administration, state and local health departments, and other clinical and public health partners are investigating a multi-state outbreak of lung injury associated with e-cigarette product use, or vaping.
All reported patients have a history of e-cigarette product use or vaping.
Among the 771 patients for whom the CDC has data, 62% of patients are 18 to 34 years old; 22% of patients are between 18-21, and 16% of patients are under 18 years old.
The latest findings from the investigation into lung injuries associated with e-cigarette use, or vaping, suggest products containing THC play a role in the outbreak.
Q: What is causing the outbreak of lung injuries?
A: The latest findings from the investigation into lung injuries associated with e-cigarette use, or vaping, suggest THC products play a role in the outbreak.
Most of the people who have developed lung injury reported using THC-containing products, or both THC-containing products and nicotine-containing products, according to the CDC. Some of the patients reported using only nicotine-containing products.
Health officials have yet to determine whether one or more e-cigarette or vaping products, substances, brands or methods of use is responsible for the outbreak.
The CDC has received data on substances used in e-cigarettes or vaping products in the 30 days prior to symptom onset among 514 patients. Of them:
- About 77% reported using THC-containing products; 36% reported exclusive use of THC-containing products.
- About 57% reported using nicotine-containing products; 16% reported exclusive use of nicotine-containing products.
Q: Can Michigan's flavored vape ban be stopped?
Two lawsuits aim to stop the ban.
The first, filed in Houghton County Circuit Court by Marc Slis, owner of the 906 Vapor vape shop, seeks a temporary restraining order be issued to stop the ban while the case is being heard.
Slis contends that the state's new flavored vape rules are illegal and will force him to close his store, where 80% of his inventory is prohibited under the ban.
A second legal challenge came Friday from Mister E-Liquid, a Grand Rapids-based e-cigarette manufacturer, retailer and wholesaler. It was filed in U.S. District Court for the Western District of Michigan and seeks an emergency relief to stop enforcement of the ban before it takes effect.
In addition, two Republican lawmakers also have taken aim at Whitmer’s efforts to ban flavored vape products in the state.
Rep. Steven Johnson, R-Wayland, introduced a bill Tuesday that would stop the Michigan Department of Health and Human Services from banning the sale of flavored vapes that have a nicotine level of 2% or less.
More: Flavored vape ban faces new challenge from Michigan GOP lawmakers
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And Rep. Beau LaFave, R-Iron Mountain, introduced a bill last week that would prohibit the state from implementing rules that limit the production, sale or use of vaping products.
“The administration’s concerns about youth vaping are legitimate, but is there a way we can address that without hurting a lot of (adult) smokers who have used vaping to quit smoking,” he said. “Most of the youth are going after the high-nicotine vapes and those who are trying to quit smoking are not using those high nicotine levels.”
Neither bill will get a hearing or a vote before the flavored vape ban goes into effect.
Q: How will enforcement of the ban work?
A: "MDHHS is working with local and municipal law enforcement agencies regarding enforcement of the emergency rules. Enforcement of the emergency rules is a multifaceted response involving law enforcement at both state and local level and an online complaint-based system," said Lynn Sutfin, a spokeswoman for MDHHS.
Retailers may be subject to inspection by local law enforcement, state law enforcement or the MDHHS Tobacco Section for follow up of a complaint, she said, noting that the department has two staff members within the Tobacco Section that can provide assistance.
Online sales will be enforced in the same way as retail storefront sales, Sutfin said.
Q: How will penalties be decided?
A: Law enforcement may refer a violation of the emergency rules to the local prosecutor for further action, Sutfin said.
While a jail sentence is possible under the emergency rules, prosecutors have discretion with regard to the sentence that they seek for violations of the rules.
Q: Are other states banning vapes, too?
A: Some are.
New York state, Rhode Island and Washington state recently announced similar efforts to ban flavored vaping products. In Massachusetts, the ban includes all vape products, not just flavored.
Q: What's happening at the federal level?
A: President Donald Trump's administration also has signaled that it is looking at a national ban on flavored vapes. He said in September that the federal government would act to prohibit thousands of flavors used in e-cigarettes because they appeal to underage users.
The U.S. Food and Drug Administration has said it will soon issue guidance on how to take flavored vaping products off the market, said Health and Human Services Secretary Alex Azar, a process that could take months.
Juul Labs Inc., the nation’s largest e-cigarette maker, said it would stop advertising its products in the U.S.
Q: What are the symptoms of the vape-related respiratory illness?
A: Patients who have had the vaping-related illnesses have reported:
Some patients have reported that their symptoms developed over a few days, while others have reported that their symptoms developed over several weeks. A lung infection does not appear to be causing the symptoms.