In the wake of recent reports tying health issues to vaping, a number of States have moved to ban non-tobacco flavored vapes, with one banning all vaping products. These actions may prove to be precipitous, with evidence emerging that THC products with specific ingredients are causing the problems.
On September 4, Michigan became the first state to announce a state-wide ban on flavored nicotine vapor products, following an emergency order issued by Governor Gretchen Whitmer which called for the ban of all flavored vapor and e-cigarette products. The temporary ban went into effect on Wednesday, September 18, with a six-month window for extension prior to the expiration of the ban. The emergency rules, filed by Michigan’s Department of Health and Human Services, define the ban as impacting flavored vapor products that impart “characterizing flavors,” which are broadly defined within the rules as flavors “other than the taste or aroma of tobacco.” Shortly after the announcement of Michigan’s flavor ban, New York, Rhode Island, and Washington announced similar bans on flavored vapor products.
While Michigan was the first state to announce and undergo the process of a statewide ban of flavored vapor products, New York was the first to implement such a ban. New York’s Governor Cuomo proposed an emergency statewide ban on flavored vapor products and flavored e-cigarettes via executive action on Sunday, September 15, which was quickly voted into effect on Tuesday, September 17 by officials from New York’s Department of Health, giving retailers until October 4 to comply. According to New York’s Department of Health, retailers “who violate the ban will face fines up to $2,000 per violation, which is defined as each unit of flavored e-liquid or product containing e-liquid that is possessed, manufactured, sold or offered for sale.” The ban was issued with a 90-day window for renewal. On September 26, Governor Cuomo and the State Health Commissioner announced an effort to include menthol in the ban.
Rhode Island’s Governor Gina Raimono quickly followed suit, signing an executive order on Wednesday, September 25, to ban the sale of flavored vapor products across the state. The executive order directs Rhode Island’s Department of Health to issue regulations, which are expected to be put into effect within the next week. Raimono stressed in the announcement regarding the executive order that the ban was largely to protect children and teenagers, who she believes could be disproportionately targeted by flavored vapor products and e-cigarettes. Raimono’s order came the day after Massachusetts Governor Charlie Baker ordered a four-month ban on all vaping products and e-cigarettes, which went into effect on Monday, September 24 (for more on Massachusetts moratorium on all vapor and e-cigarette products, see our post here).
On September 27, an executive order was issued by Washington’s Governor Jay Inslee to draft an emergency regulation which would prohibit the sale of all flavored vapor nicotine products, as well as flavored THC vaping products. The emergency regulation is expected to be established and put into effect by the Washington State Board of Health on Wednesday, October 9. Beginning October 1, Washington State will impose a new excise tax on all electronic cigarette and nicotine vapor products, which will require all businesses considered the first possessor of the product to apply and pay a one-time tax on all vapor products. According to a press release, Governor Inslee stated that the state of Washington isn’t “waiting for Big Tobacco to tell us what is in their products.” The executive order follows reports of at least “seven cases of severe lung illness in Washington from vaping devices or e-cigarette products,” though no definitive evidence has linked these reports to any specific ingredient in nicotine vapor products.
In all states and localities, the response from the retailers and small businesses who depend on flavored vapor products for the success of their businesses is one of concern. Massachusetts, Michigan, and New York have been met with lawsuits, litigation, and protests in response to the emergency bans.