Thursday, September 05, 2019

Michigan Ban on Flavored E-Cigarettes is a Terrible Policy with Devastating Public Health Consequences

Yesterday, Michigan Governor Gretchen Whitmer signed into law an executive order that bans the sale of all flavored e-cigarettes in the state. The ban includes both retail sales and online sales of all e-cigarettes, with the sole exception of tobacco-flavored products. In doing so, Michigan becomes the first state in the nation to promulgate a complete ban on the sale of the overwhelming majority of vaping products.

In defending the ban, state health officials "pointed to studies indicating that young people who vape are more likely to start smoking regular cigarettes."

The Rest of the Story

I cannot overemphasize how insane this policy is. From a public health perspective, it makes absolutely no sense to ban these fake cigarettes, but to allow the real ones to remain on the shelves. If electronic cigarettes, which have not been confirmed to have caused a single death, are so dangerous that they cannot be sold anywhere in the state, then certainly real tobacco cigarettes which kill more than 400,000 Americans each year should not be sold in Michigan.

And if the chief concern of the governor and health officials is that e-cigarette use may lead to youth smoking, then how ludicrous is it to allow the sale of cigarettes to continue while thousands of kids in the state are apparently at high risk of starting to smoke?

Certainly, if youth vaping is a public health emergency then youth smoking is even more of an emergency and so is youth alcohol use, especially youth binge drinking. But the governor is not banning the sale of cigarettes or alcohol. Why? There is simply no public health justification for this selective ban on the sale of electronic cigarettes.

Not only is this terrible public policy, but it is going to have a devastating effect on the health of Michiganders. Tens of thousands of ex-smokers in Michigan rely upon flavored e-cigarettes to remain off of cigarettes. They successfully quit smoking completely by switching to vaping. When these products are taken off the market, they are not going to drive down to Ohio to purchase their favored vaping products. Instead, most of the them are going to simply go back to smoking. It's simply too inconvenient for them to have to drive long distances to continue vaping. And if you think that these tends of thousands of vapers are going to quit nicotine cold turkey, then you don't know anything about nicotine addiction.

The other thing that some vapers will do is to start purchasing their products off what will be a new black market in Michigan. Unlike all other vaping products in the nation, these products will be the only ones that are completely unregulated. As of May 2020, the FDA will have complete scrutiny over every electronic cigarette device and e-liquid on the market throughout the nation, except for those in Michigan, which will be completely unregulated. This makes no sense at all. Given the outbreak of severe respiratory disease we are now seeing due to black market marijuana vaping products, the last thing we need is to have a new black market of nicotine e-liquids being developed. But vapers in Michigan will have no choice. For the overwhelming majority, it will be either returning to smoking or purchasing off the black market.

I hope that the state legislature will override this completely irresponsible decision by the governor, but if not, I think there are strong grounds for a lawsuit to enjoin this regulation from taking effect. By banning electronic cigarettes but not real cigarettes, which are similarly situated with regards to their public health consequences (actually, not similarly situated but much more deadly), this is an arbitrary and capricious action and is therefore not justified as a health regulation.

The rest of the story is that Michigan's ban on flavored e-cigarettes is an irresponsible and unjustified public health policy that is going to have devastating public health consequences. This is an example to the nation of exactly what not to do to respond to the epidemic of youth vaping.

Instead, the state should simply restrict the sale of all tobacco products - including cigarettes and vaping products - to adult-only (age 21+) establishments that only sell these products. This would help to reduce youth vaping while at the same time allowing ex-smokers to continue accessing the vaping products that are literally saving their lives. And it would save thousands of small businesses - the vaping shops in Michigan that are essentially acting as smoking cessation clinics for the state's smokers. It's like having a statewide smoking cessation program without having to put out a penny in funding. Now why would you want to get rid of that?

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