If you thought things would die down after the New York and Michigan flavor bans, you were wrong. In fact, those states were probably just the beginning. Vaping is holding its own in a news cycle that includes the possible impeachment of the President, 19 Democratic candidates fighting for attention, and the mess in the U.K. called Brexit.
Just in the last three days we’ve seen:
- A Congressional hearing on the outbreak of vaping-related lung injuries
- An outright ban on all vaping products in Massachusetts
- A ban on flavored products in Rhode Island
- Announcements from several other states that bans may be imminent (and Washington seems certain)
- Military exchange stores dropping vapes from their product line
- Lawsuits by the vaping industry in New York and Michigan
- The New York governor deciding to include menthol e-cigarettes in his ban, and
- The CDC announcing yesterday that the count of suspected lung injuries is now 805 with 12 deaths
That was from Tuesday to Thursday. Next week may be better, but don’t count on it. We’re in the midst of a full-blown moral panic, on a scale not seen in decades. The people who got it rolling—a couple of Massachusetts pediatricians, Sen. Chuck Schumer, Campaign for Tobacco-Free Kids, and Truth Initiative—must be enjoying themselves.
But vapers certainly aren’t. Shops are shutting down, and people whose lives are invested in the banned products are being ruined. Worst of all, people who’ve avoided cigarettes for years are worried they’ll start smoking again. It’s scary.
Gov. Gina Raimondo, following the Michigan playbook, has directed the Department of Health to create regulations banning all flavored vaping products. Raimondo’s ban will be effective for four months, but with the option to extend it for two additional months.
“These products are deliberately, specifically targeted to children, being used by children, and hurting children,” said Raimondo, according to TV station WPRI.
Rhode Island health director Dr. Nicole Alexander-Scott says the regulations could be put in place by early next week. They will be enforced by local police agencies, the Rhode Island State Police, the Rhode Island Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (BHDDH), and the attorney general’s office.
Rhode Island-based CVS Health, the national pharmacy chain that also owns Aetna Insurance, cheered the move. CVS is a major funder of anti-vaping and tobacco control programs.
“Gov. Raimondo is taking a critical step to curtail the use of flavored e-cigarettes in our home state of Rhode Island,” the company said in a statement. “This and similar actions across the country get us one step closer to the first tobacco-free generation.”
The Vapor Technology Association (VTA), the largest national vaping trade group, has filed a lawsuit along with two New York vaping businesses, in the New York Supreme Court for Albany County against Gov. Andrew Cuomo, the state Department of Health and the Public Health and Health Planning Council.
The lawsuit seeks declaratory judgment, a temporary restraining order, and a preliminary and permanent injunction to nullify the ban on flavored vaping products in New York State and to prevent it from being enforced.
“Not only will the State’s arbitrary and misguided measure do nothing to address the marketing issues about which the State has complained, it is one of the worst examples of government overreach,” said VTA executive director Tony Abboud in a statement. “Banning flavors for vapor products, while leaving all flavored combustible products on shelves can only entice all users to smoke more.”
The lawsuit says that the state’s arbitrary and capricious emergency rule crosses the line from “administrative rule-making to legislative policy-making.” According to the VTA, Gov. Cuomo’s executive overreach “is underscored by the fact that in its last session, the State Legislature considered, and ultimately did not enact, a flavor ban and instead decided to address concerns about youth vaping by raising the minimum age for vapor products from 18 to 21 — legislation that has not yet even had an opportunity to take effect.”
“The State blatantly ignored the Legislature’s efforts and unilaterally usurped its role in making new policy that will devastate an industry,” says the VTA.
The lawsuit was filed Wednesday. Thursday, the apparently unconcerned governor changed his mind and added menthol-flavored vaping products to the ban. Cuomo ordered the state health commissioner to convene another meeting of the Public Health and Health Planning Council to rubber-stamp the new restriction. The amendment to the ban was supposedly prompted by newly reviewed data that show New York youth love menthol too.
Vape shop owner Marc Slis has filed suit in Houghton County Circuit Court to stop Gov. Gretchen Whitmer’s ban of flavored vaping products. In the lawsuit against the state Department of Health and Human Services, Slis asked the court for a temporary restraining order and a preliminary injunction to prevent the ban from taking effect on Oct. 2.
The ban is invalid, says the lawsuit, because the governor and the DHHS bypassed the Administrative Procedures Act (APA) and used emergency powers to institute the ban without proving a true emergency. The APA has defined procedures that allow for public comment and oversight. The governor also bypassed the normal legislative process.
Slis, owner of 906 Vapor in Houghton, has become a Michigan vape celebrity after driving 500 miles from his small Upper Peninsula town to give heart-rending testimony at a State House committee hearing in Lansing earlier this month (video below). Legislators from both parties sat silent as he spoke for 10 minutes about the lives saved by his shop, including his own. Slis says that tobacco-flavored products make up less than five percent of his store’s business.
Slis is part of a coalition of businesses called Defend MI Rights that have joined to fight the ban. Another suit from members of the coalition is expected soon in federal court, challenging the ban on interstate commerce grounds. Defend MI Rights is actively seeking additional members from among Michigan’s several hundred vaping businesses.
Two bills have been introduced in the Michigan Legislature that could stop the ban. The first, HB 4996, sponsored by Rep. Beau LaFave, would prevent the state DHHS from being able to ban vapor products. CASAA has issued a call to action (link below), asking vapers to support LaFave’s bill.
The newer bill, HB 5019, sponsored by Rep. Steven Johnson, prevents the DHHS from banning vapor products with a nicotine content lower than two percent (20 mg/mL). That would still allow the state to prohibit many products, including most nicotine salt e-liquids and prefilled pod devices sold in convenience stores.
Washington State and other possible bans
A Thursday Associated Press story says Washington Gov. Jay Inslee will hold a press conference Friday morning “to announce an executive order related to vaping.” The governor is expected to follow the eastern states that have banned vape products.
According to the AP, Inslee will be joined at the press event by the state’s health secretary and the director of the Liquor and Cannabis Board. It isn’t known if Inslee will ban both nicotine and cannabis vapes, as Massachusetts Gov. Charlie Baker did. Washington, like Massachusetts and Michigan, is a legal recreational cannabis state. (Michigan passed legalization in 2018, but still has no regulated recreational market in place.)
So far, all of the states that have banned vaping products have skipped the normal legislative route and instead declared some form of health emergency, variously citing the outbreak of “vaping-related” lung injuries or the “epidemic” of adolescent use.
In addition to the states mentioned in our huge Sept. 21 roundup of potential upcoming bans, Virginia Gov. Ralph Northam announced Wednesday to “expect something soon.” The governor of Vermont has indicated he is considering a ban, and Connecticut and Oregon also appear headed in that direction. Illinois and New Jersey had hearings last week to explore the possibility of flavor bans. And a Maine legislator announced she would propose a bill to ban all vaping products.
The Trump administration has not backed off its intention to impose a federal ban on flavored vapes, and without continued opposition from vapers—especially in states that supported Trump’s 2016 election—there may be no stopping it. An early onslaught of angry phone calls and social media messages rattled the administration, but vapers have let up in recent days.
Continue to call the White House at 202-456-1111. Tell the operator that you will not support the President’s reelection if he bans the flavored products that are important to you.
CDC is still warning about “e-cigarettes”
In its now-weekly update on the lung injury outbreak, the Centers for Disease Control and Prevention continued its practice of describing the products victims use as “e-cigarettes.”
There are now 805 cases from 46 U.S. states and the U.S. Virgin Islands. Twelve people have died from their injuries.
“Based on initial data from certain states we know: Most patients have reported a history of using e-cigarette products containing THC,” says the agency. “Many patients have reported using THC and nicotine. Some have reported the use of e-cigarette products containing only nicotine.”
And based on that, the CDC refuses to specifically warn Americans away from the black market THC oil that is clearly the prime suspect in all of the deaths.
Cannabis oil vapers do not call their products “e-cigarettes,” which is a term reserved strictly for nicotine vaping products. By using that term the agency is leading many THC oil users to continue risking their lives with illicit vape carts. At the same time, the CDC is frightening users of nicotine vapes back to smoking cigarettes.
There is no excuse for such an approach. And there is no logical explanation, except that the leadership at the CDC is so opposed to the use of nicotine products that it would rather see cannabis users continue to die than use words that ordinary cannabis and nicotine users understand.
A Sept. 24 Leafly article explains the supply chain for illegal cannabis oil cartridges, and illustrates in detail how producers use substandard products and dangerous additives to cut the hash oil, resulting in potentially deadly products that are sold across the country by the millions.
But the CDC has ignored this evidence and continues instead to repeat its mantra of “e-cigarettes, e-cigarettes, e-cigarettes,” as though by saying the words the blame for the outbreak can be shifted onto products that have been used for years by millions of people with no adverse effects.
Smokers created vaping without any help from the tobacco industry or anti-smoking crusaders, and vapers have the right to keep innovating to help themselves. My goal is to provide clear, honest information about the challenges vaping faces from lawmakers, regulators, and brokers of disinformation. I recently joined the CASAA board, but my opinions aren’t necessarily CASAA’s, and vice versa. You can find me on Twitter @whycherrywhy
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