E-cigarettes

Michigan Governor's Reckless E-Cigarette Ban Relies on a Breathtakingly Broad Reading of Her Authority To Protect 'Public Health'

Gretchen Whitmer has unilaterally decided that Michigan smokers should not be allowed to buy flavored e-cigarettes.

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Today Michigan Gov. Gretchen Whitmer, a Democrat, announced that she is unilaterally imposing a statewide ban on the sale of flavored e-cigarettes, based on the public health "emergency" allegedly posed by the "vaping crisis among youth." Whitmer's order, which will make Michigan the first state to impose such a ban, raises two obvious questions: Can she do that, and does it make sense? The answers are maybe and definitely not.

"We are not contesting the governor's authority," Amber McCann, a spokeswoman for Senate Majority Leader Mike Shirkey (R–Clarklake) told The Detroit News. At the same time, McCann called the ban, which takes effect as soon as the rules are formally issued and lasts up to a year, "very premature," noting that "no discussion on that topic has taken place."

State Rep. Matt Maddock (R–Milford), chairman of the Joint Committee on Administrative Rules, described the ban, which applies to online as well as in-person sales, as an "Orwellian" edict aimed at "dismantling a legal industry." He added that Whitmer is "essentially usurping the rulemaking process defined by the state Constitution," since "there is no state emergency," and "the governor can't just outlaw bad habits just because she doesn't like them."

Benjamin Wetmore, Maddock's legislative aide, tells me his boss has not seen the text of Whitmer's order and is as puzzled as anyone else about the legal basis for it. "He has not seen the authority for the governor's proposed order either," Wetmore says.

When she announced her order on Twitter and Facebook, Whitmer did not say what statute gives her the authority to ban flavored e-cigarettes. "My number one priority is keeping our kids safe," she said. "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."

Lynn Sutfin, a spokeswoman for the Michigan Department of Health and Human Services, says the governor's order "has not been finalized yet," but she referred me to Section 333.2226(d) of the Michigan Public Health Code, which says the department may "exercise authority and promulgate rules to safeguard properly the public health." The code does not define "public health," and it says, "This code shall be liberally construed for the protection of the health, safety, and welfare of the people of this state." Last Friday, the department made a "finding of emergency" that says "a vaping crisis among youth" justifies "the promulgation of emergency rules."

That finding does not cite any specific statutory authority for such "emergency rules." But according to Chelsea Lewis, the governor's deputy press secretary, the health department is relying on its general authority under Section 333.2226(d), combined with Section 24.248 of the Administrative Procedures Act, which says an agency may issue an emergency rule "without following the notice and participation procedures" that would otherwise apply when it "finds that preservation of the public health, safety, or welfare" requires it and the governor agrees.

In short, Whitmer's e-cigarette ban rests on a breathtakingly broad reading of her authority to make emergency rules in the name of "public health," however she defines it. "The rules will be filed in the next few weeks," Lewis says. "They will take immediate effect once filed."

Last year the New York Department of Health, whose powers include writing regulations that "deal with any matters affecting the security of life or health or the preservation and improvement of public health in the state of New York," rescinded regulations that would have banned flavored e-cigarettes. Critics, who noted that similar bans have been introduced in the state legislature but have not gone anywhere, said the regulations were an improper usurpation of legislative authority.

The emergency that supposedly requires Whitmer's ban is the recent surge in e-cigarette use by teenagers. Yet selling e-cigarettes to minors is already illegal in Michigan, and Whitmer, notwithstanding her avowed interest in protecting "public health," is giving no weight to the interests of adult smokers who have switched to vaping, a much less hazardous source of nicotine, or are thinking about doing so. The e-cigarette flavors that she thinks are enticing "children" are indisputably popular among adults, many of whom say flavor variety is important in the process of replacing cigarettes with a far less dangerous alternative that delivers nicotine without tobacco combustion products.

"This shameless attempt at backdoor prohibition will close down several hundred Michigan small businesses and could send tens of thousands of ex-smokers back to deadly combustible cigarettes," says Gregory Conley, president of the American Vaping Association, a nonprofit organization that promotes e-cigarettes as a harm-reducing alternative to the conventional kind. "These businesses and their customers will not go down without a fight. We look forward to supporting the lawsuits that now appear necessary to protect the right of adults to access these harm reduction products."

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  1. “Protecting Public Health” is by itself a broad mandate. The fact that people are interpreting it broadly is an expected result.

    1. The San Francisco vape flavour ban states that any vape companies that send vape products to a San Francisco address are breaking the law and HUGE fines will be issued. Its policed the same way some states deal with online fire arms . They not gonna let Americans give up tobacco. Ever. They NEED you to smoke and they need 400 thousand Americans to die every year from tobacco related illnesses because the only industry that has more power than the TOBACCO giants are the big pharmaceutical companies cancer is really big Busine$$

  2. Too bad the internet exists and you can order juice online and have it delivered. This will be inconvenient for Michigan vapers, but that’s about it.

      1. You can pretty much order any drug, legal or illegal, online and ship it right to your door.

        1. “Able to” and Risking a jail sentence are not mutually exclusive.

          1. Virtually no risk of a jail sentence. At least where I live.

            1. There are many layers to this. If you’re talking about a silk road kind of situation, yes, lots of people trade in illegal goods that are shipped right to their doors, but whether they believe it or not, they are risking a jail sentence- it just may not be very likely depending on the quantities and circumstances involved. The proprietor of those goods or the person running the forum is definitely risking a major jail sentence, possibly life in prison.

              But if we’re talking about going through a legit retailer, the state can easily ban a single good– and if you try to ship to an address in the covered area, you’re not getting that good. Go to CheaperThanDirt or LuckyGunner, add to cart a box of .45 ammo, and put in a new York city zip code and watch what happens.

      2. Only if they ban it in all 50 states, and even then you can buy it internationally.

        They fucked up by only banning selling flavors. That makes it unenforceable and only fucks their state economy by making vape shops sell garbage. California vape shops are going to make a killing selling to Michigan folks online.

        What are the cops going to do to you, the vaper, for owning a product that just can’t be sold in the state?

        Michigan continues to be a joke, no film at 11.

        1. The city of New York prohibits online ammunition sales. If you go to an online retailer of ammunition and put in an NYC zip code, they won’t ship to you.

          I’m not saying there’s no way for you to figure out a way to have access to it, but if you’re going through a retailer, they can easily ban that. Now, sure, you might be able to get it from a guy named “Chip” who sells small quantities on eBay, but just like selling wine across state lines, it’s easy to shut down the above-board retailers– you just pass a law and vigorously prosecute the first one that’s found to be violating it.

        2. And there is no shortage of Michigan idiots populating my social media feed, cheering on this action, since it was performed by a Democrat. If the last governor had tried it, the same voices would’ve called it racist or something.

      3. Yes it can. Juul does not take any chances. They unilaterally stopped selling anything except tobacco or menthol flavors in the stores. You can only get the other flavors on line. If they ban this Juul will not ship to Michigan.

      4. And who would enforce it? You gonna have state employees checking people’s mail? USPS will have the USPS Police on someone’s ass in a heartbeat for that shit.

  3. Why, throughout the article, do we insist that this is a ban on e-cigarettes? It seems a bit like playing their game. It should be more clear that this is a ban on flavors, or even advertising (with) flavors.

    1. Where does the governor derive authority to ban flavorings? At the very this is an effort to cripple the vape shop business in Michigan.

    2. Gotta play dirty to win.

      1. I’m fine playing dirty. It’s playing willfully stupid that bugs me.

    3. Flavored e-cigarettes make up the vast majority of e-cigarettes

      1. Neither she nor the law makes mention of popularity, market share, or similar criteria.

        The majority of e-cigarettes may be flavored and you might even be able to specifically prevent all teens from smoking them by banning the 1 or 2 flavors that teens smoke (hypothetically) but even then, the ban still criminalizes the flavors and not vaping or teens vaping.

        They’re stealing a base trying to ban e-cigarettes based on flavor and they should be called out on it just as if they tried to prevent speeding by banning red cars or prevent concert shootings by banning loud musical instruments.

        1. I agree that there is a distinction present but I just don’t think calling it a ban on e-cigarettes is dishonest because effectively 9 in 10 (my guess) e-cigarettes/refills on the shelf will be outlawed. But point taken.

  4. 1.) create E Cig juice with no flavor and sell it
    2.) sell flavoring

  5. “My number one priority is keeping our kids safe,”

    Shortly after, she announced the rollout of a new program, the “Keep Our Own Kids Safe” initiative.

  6. This is why you do not elect progressive busybodies to high office.

    1. No, this is why government is evil. Government enables busybodies of all stripes. Democracy encourages pandering of all stripes, but that’s just the icing on the cake.

      I’d subscribe to your newsletter if you could describe any government which did not enable busybodies.

      1. An absolute monarchy wouldn’t enable busybodies. Provided the king doesn’t put up with stupidity or “yes men”.

        Of course, the executioner’s guild would be quite busy.

  7. Oof, even Twitter and Facebook are against her on this. Philip Morris must have paid her a massive amount of money.

    1. I don’t know that Philip Morris owns any vape brands, but they have definitely been trying to get in the market for cigarette alternatives. Meanwhile, RJReynolds owns Vuse.

      I’m thinking big tobacco isn’t the bogeyman on this.

      1. It’s Michigan – money changed hands somewhere!

        Although this could also just be a woman thing. “Do it for the kids” always works on the women.

      2. Altria owns a large percentage of Juul and they’re the parent company of Phillip Morris.
        Juul uses salt nicotine and there is something about the ingredients that turns it into an acid that is then known to cause cancer. So, the most dangerous Ecigs seem to be the ones owned by big tobacco. I think making salt nicotine is cheaper than actual nicotine. It’s almost as if there are two totally different markets for e-cigs.

        1. Is that a new study or is that the same one where they had to turn up the temperature so high, beyond what anyone would who used the product, to create formaldehyde?

          ps. if that sentence structure sucks it has been a long day.

          1. They users can turn up the current to get a bigger hit with those. I have seen where formaldehyde and other compounds can be produced and it depends on the temperature. Formaldehyde in large doses could be harmful but I have not found any studies showing a link to disease with these things.

            The good news is near everyone I know who was smoking the actual cancer sticks and could not stop with other methods has been able to quit those and switch to these which is without doubt a great harm reduction.

        2. If there is such a study I would like to see it.

          So far as I have seen the other form, freebase nicotine is produced by adding ammonia to make it more alkaline, not acidic.

          The salt form is closer to naturally occurring nicotine. There are no studies I can find linking either one to cancer.

          What is claimed is that the salt form is more addictive because the nicotine gets into the bloodstream more quickly. It does but I have some doubts about whether it is more addictive.

          If you have ever seen someone vape from one of those other devices they tend to take big “hits” releasing large clouds of vape. Anything harmful is likely in the carrier juice, not the nicotine.

          What juul did was create a device where the “hit” is controlled and a smaller amount of vape is inhaled. The concentration of nicotine is standardized to 3% or 5%.

  8. Someone seriously needs to start a keep kids unsafe movement. Don’t all of these people bitching about climate change and population explosions understand the easiest way to solve both problems?

    1. Someone seriously needs to start a keep kids unsafe movement.

      Those people exist but they’re called “problematic” now.

    2. You mean the Free Range Kids movement *isn’t* implying they be grown for food?

      1. Dammit. I am doing this whole kids thing all wrong……

  9. “We are not contestinging the governor’s authority…”

    Why the hell not?! Whitner has issued a dictatorial decree without no apparent authority to do so.

    Grow a spine, Senate Majority Leader Shirkey.

    1. But someday they could have these quasi-dictator powers, so best not to oppose too loudly.

  10. What is the real basis for giving super powers to the executive for “emergencies?” It’s as if in the case of a true emergency, the legislative body couldn’t act quickly as well? The United States declared war on Japan the day after Pearl Harbor, passing votes in both chambers within an hour of the “Day of Infamy” speech.

    There’s no rationale to drive these acts outside of normal legislative procedures, other than to increase the likelihood of power grabs.

  11. “Michigan Governor’s Reckless E-Cigarette Ban Relies on a Breathtakingly Broad Reading of Her Authority To Protect ‘Public Health’.”

    Why do the words, “nanny state” just leap to mind?

  12. They banned something that’s still legal in New Jersey?

    HA! SUCK IT, MICHIGAN!

  13. You could make good money driving back and forth between Michigan and neighboring states like Indiana or Ohio.

    People in the neighboring states drive to Michigan to get legal weed. With this you could just buy up Mango juul pods in Indiana, sell them in Michigan, pick up weed there and just keep on shuttling back and forth.

    1. Well I understand officer Pantaleo is looking for a job.

    2. People in the neighboring states drive to Michigan to get legal weed. With this you could just buy up Mango juul pods in Indiana, sell them in Michigan, pick up weed there and just keep on shuttling back and forth.

      Might as well wear a t-shirt that says “I can’t breathe.” while doing it.

    3. Hey, now that’s something I hadn’t thought of: Weed among minors isn’t an emergency in Michigan, but vape flavorings are? It seems bizarre that the governor would ban sales of flavored vapes but not of weed.

  14. “My number one priority is keeping our kids safe,” she said. “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.”

    “I am BANNING CANDY — for the children!!”

    1. Candy is a gateway drug on the path to obesity and diabetes. The wrappers don’t even have health warnings that they directly contribute to those diseases!

    2. Only flavored candy. Unflavored candy (menthol?) is OK.

  15. Today Michigan Gov. Gretchen Whitmer, a Democrat, announced that she is unilaterally imposing a statewide ban on the sale of flavored e-cigarettes, based on the public health “emergency” allegedly posed by the “vaping crisis among youth.”

    Declaring an emergency and then issuing executive orders to bypass the normal legislative process sounds like something a dictator – or someone who believes herself to be eminently and uniquely qualified to act as a dictator – would do. It’s a wonder nobody else has ever thought about doing an end-run around the Constitution in such a manner. I guess nobody else has ever had the massive ego and hyper-inflated self-regard to pull off such a dick move.

    1. Not sure if you’re just being sarcastic, but that basically is the blue print every level of government uses to get around the constitution and they’ve been using it for at least 100 years now. The bill of rights is a dead letter of law.

  16. I hate this bitch, and I don’t even vape. She’s also trying to get a 45 cent/gallon gas tax, cuz every other tax they’ve raised for roads end up in the general fund and our roads are still shit. And this new gas tax already has some of it going to the general fund, with more of it to follow in years to come I’m sure.

  17. When she announced her order on Twitter and Facebook, Whitmer did not say what statute gives her the authority to ban flavored e-cigarettes.

    Ho. Lee. Shit. Are you fucking kidding me? She just got on Twitter and sent out a tweet saying she was hereby decreeing a handwave and a thy will be done? Did she put a dead weasel on her head, slam the Fake News Media, include a secondary tweet about how no governor in the history of Michigan, possibly the entire world, has ever accomplished as much as she has (and many other governors have told her this) when she sent out the tweet? Tell me she at least made those weird effeminate little “OK symbol” hand gestures with her delicate little hands when she did it.

    LOL!

    1. her delicate little hands

      The meat hook in the photo looks like a side of sausage and potatoes.

  18. You want to protect the people and yet you can’t protect children from being abused, binge drinking, popping pills, smoking tobacco, suicide, and being homeless. You are a hypocrite. This has nothing to do with protecting anyone. I know several adults including myself that vape fruity flavors. I’m 31 years old and at one point in time was a pack a day smoker. I have customers that are in their 70’s vaping fruity flavors or vanilla. You are not protecting the people. You are listening to the propaganda. You lost your war on drugs and now you want to target the vape industry. I hope you get sued down to the ground due to profit loss. America is one of the few countries that try to ban anything that helps people quit smoking combustible tobacco. While counties like the UK are 100% supporting it. Stop targeting industries that you are the state is not making a profit off of. Because that is what boils down to. You are no longer getting that fat tobacco tax anymore so you’ll ban anything that isn’t getting much from. I was even going to consider moving there. Nah. You are just as ass-backward as California with their flavor ban. Hold parents, gas stations, and convenient stores accountable instead of trying to punish everyone just because they either failed to ID someone or the parents don’t care what their kids do. You shit stains have laws. Why the fuck are you not enforcing them?

    1. Ick. Those flavors smell nasty. Good riddance.

  19. Renember…Gretchen and similar political assholes always know whats best for you!

  20. There is one sure way to get a teen interested in trying something…make it illicit.

  21. Stop complaining. She’s the Governor. It’s right there in the job title.

  22. Governor Gretchen? Would.
    And then I’d smoke an e-cigarette afterward.

  23. This is why you don’t elect women. What was the first thing women did when we gave them the right to vote? They banned alcohol.

  24. ” Michigan Gov. Gretchen Whitmer, a Democrat, ”
    Fascists gotta be fascists – – – – –
    Elect a democrat, get a dictator.
    Welcome to the revolution.

  25. They banned alcohol and then gave up, they banned marijuana and are currently giving up. Now a new ban. Anyone else see a stupid self defeating pattern?

  26. “We are not contesting the governor’s authority,” Amber McCann, a spokeswoman for Senate Majority Leader Mike Shirkey (R–Clarklake) told The Detroit News.

    And this why the GOP is failing. They have no spines.

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