Whitmer signs 1st vaping ban in nation, industry group calls it ‘illegal’

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Updated, 2:37 9/4/2019 with comment from Shirkey’s office and to reflect that U.S. Rep. Frank Pallone is a congressman, not a senator

Gov. Gretchen Whitmer on Wednesday morning made Michigan the first state in the country to attempt a ban on flavored nicotine vaping products. 

Gov. Gretchen Whitmer at Affirmations in Ferndale, June 3, 2019 | Derek Robertson

Essentially, Whitmer is declaring a public health emergency based on recommendations from the state Department of Health and Human Services (DHHS). Once the rules take effect in the coming weeks, online and regular retail sales of flavored vaping products will have to cease in the state.  

The state will also move to “ban misleading marketing of vaping products, including the use of terms like ‘clean,’ ‘safe,’ and ‘healthy’ that perpetuate beliefs that these products are harmless,” according to the governor’s office.

The move by Whitmer on Wednesday has already been called “illegal” by a vaping lobby group, which is threatening legal action.

Teen vaping and illnesses reportedly related to the use of e-liquid have been on the rise. The state cited national figures that showed from 2017 to 2018, e-cigarette use spiked 78% among high school students and 48% among middle school students.

“As governor, my number one priority is keeping our kids safe,” Whitmer said in a statement. “And 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. 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.”

The move drew praise from several health groups, both in the state as well as at the national level and from several prominent Democrats, including U.S. Rep.* Frank Pallone (D-N.J.), who chairs the chamber’s Energy and Commerce Committee. 

In a joint statement, groups like the American Heart Association, the American Cancer Society Action Network and the American Lung Association praised Whitmer’s move and said similar steps need to be taken by the U.S. Food and Drug Administration (FDA).

“The time for waiting is over,” the groups said. “The FDA must immediately remove all flavored e-cigarettes from the market nationwide, prohibit all marketing to children and prohibit online sales of e-cigarettes. The agency also must enforce the law by prohibiting the introduction of new e-cigarette products without prior agency review and authorization and promptly reviewing products already on the market.”

Many of those same groups expressed disappointment earlier this summer when Whitmer signed legislation banning the sale of vapor-based nicotine products to minors, saying it didn’t go far enough. At the time, Whitmer said she had reservations but that the law was an “important step.”

Health groups ‘disappointed’ with e-cig bill signed by gov.

Gregory Conley, president of the American Vaping Association, is promising a legal challenge to Whitmer’s proposed ban. The group has long promoted vaping as a “harm reduction” alternative to traditional cigarettes. He said the move to ban would have unintended consequences including small businesses closing and people returning to cigarettes. 

“In this country, laws are made by legislators, not governors desperate for press attention,” Conley said in a statement. “Anyone who fears the prospect of an out of control government should be appalled by this attempt by the executive branch to unilaterally ban an adult product.”

Juvenile vaping ban passes, unclear if Whitmer will sign

Amber McCann, a spokeswoman for state Senate Majority Leader Mike Shirkey (R-Clarklake), said that “The Majority Leader shares the Governor’s concerns about the impact of the product on kids,” and noted the broad authority of DHHS when it comes to the public health code.*

Whitmer said she’s prepared for legal challenges, however.

“Bring it on,” Whitmer said on WWJ-AM when asked about likely court challenges. 

Nick Manes
Nick Manes covers West Michigan, business and labor, health care and the safety net. He previously spent six years as a reporter at MiBiz covering commercial real estate, economic development and all manner of public policy at the local and state levels. His byline also has appeared in Route Fifty and The Daily Beast. When not reporting around the state or furiously tweeting, he enjoys spending time with his girlfriend, Krista, biking around his hometown of Grand Rapids and torturing himself rooting for the Detroit Lions.

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