Executive Power

E-Cigarette Restrictions Raise a Question: Can Governors Unilaterally Ban Products They Don't Like?

Pending restrictions on vaping products in Michigan and New York are based on an alarmingly broad understanding of the executive branch's "public health" authority.


New York Gov. Andrew Cuomo (D) this week announced that he plans to impose an "emergency" ban on e-cigarettes in flavors other than tobacco and menthol. Like the recent decision by Michigan Gov. Gretchen Whitmer (D) to impose a similar ban in her state, Cuomo's move is based on an alarmingly broad understanding of a governor's authority to prohibit products in the name of "public health" without new legislation.

Cuomo's plan involves convening the New York State Public Health and Health Planning Council, which has the power to "amend and repeal sanitary regulations" with the approval of the health commissioner, who is appointed by the governor and confirmed by the state Senate. Those sanitary regulations may "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."

That is a potentially sweeping mandate, encompassing not just traditional public health threats such as pollution and communicable diseases but anything people do that may affect their "life or health." In this case, Cuomo is asserting the authority to ban the vast majority of vaping products. But he could just as easily (and more plausibly) decide that conventional cigarettes, which are far more dangerous than e-cigarettes, should be banned. And under his reasoning, that move would not require legislative approval. Likewise with alcoholic beverages, highly caloric food, big sodas, fast cars, fireworks, guns, or any other product that may cause disease or injury.

Cuomo's choice of flavored e-cigarettes is especially dubious for several reasons. First, it is likely to drive many former smokers who are now vaping, who overwhelmingly prefer the products he plans to ban, back to a much more dangerous source of nicotine. Second, by making e-cigarettes less appealing, his ban will deter current smokers from making a switch that could save their lives. Third, it will encourage the use of the black-market vaping products that Cuomo himself describes as especially risky.

Far from promoting public health, a ban on flavored e-cigarettes is apt to undermine it, leading to more smoking-related disease and death while giving a boost to illicit e-liquids that, as Cuomo puts it, "have no controls on them whatsoever." And since bills that would ban flavored e-cigarettes have so far gone nowhere, he is imposing a policy that the state legislature has considered but declined to enact.

In Michigan, Gov. Whitmer is relying on a general provision of the Public Health Code that says the state Department of Health and Human Services may "exercise authority and promulgate rules to safeguard properly the public health." The code does not define "public health," but it says, "This code shall be liberally construed for the protection of the health, safety, and welfare of the people of this state." To avoid the process that ordinarily must be followed to issue new regulations, Whitmer is relying on a provision of the Administrative Procedures Act that 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.

Whitmer's interpretation of those provisions effectively gives her the unilateral power not only to ban products but to create new crimes. The "emergency rules" written by Michigan's health department make it a misdemeanor, punishable by up to six months in jail and a $200 fine, to sell e-cigarettes in flavors other than tobacco. Under those rules, it is also a misdemeanor to possess such e-cigarettes with the intent to sell them, and "a person who possesses four or more flavored vapor products" is "rebuttably presumed to possess said items with the intent to sell." As Boston University public health professor Michael Siegel points out, that means anyone who possesses a four-pack of flavored Juul pods is presumptively guilty of a misdemeanor that can send him to jail.

The New York Times reports that California Gov. Gavin Newsom (D) would like to follow the example set by Cuomo and Whitmer, but "he said it did not appear he could instate an outright ban on e-cigarette products without legislative action." California's Health and Safety Code does not seem to include the sort of broad language on which Cuomo and Whitmer are relying, which may explain why Newsom reached that conclusion.

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  1. Apple needs to release the iCigarette.

  2. Meanwhile, the next Eric Garner contemplates the profits he’ll make selling vaping cigarettes on the street.

    1. Eric Garner? Me, too! What an opportunity to deliver a safe, tasty, widely enjoyed and widely available product to a bunch of voters too stupid to recognize the difference between pleasure and threat? What’s not to like here?

  3. he plans to impose an “emergency” ban on e-cigarettes in flavors other than tobacco and menthol

    What about tobacco flavor that tastes like cherries or menthol flavor that tastes like pineapple? Who are you to tell me what I’m tasting? I taste menthol here, bud.

  4. > Can Governors Unilaterally Ban Products They Don’t Like?

    If the president, who is never wrong, claims he can do it by edict, then why not a governor?

    1. Lots of Trump types love their Juuls but not as much as they love Trump.

      1. Wrong-Juul is popular with upper-middle class white kids, whose parents (and themselves) mostly are progressive democrats-hence why there is this national apeshit over Juul. Trump types prefer Red Man and Marlboro Reds (no pun intended)

    2. “”Cuomo’s choice of flavored e-cigarettes is especially dubious for several reasons. First, it is likely to drive many former smokers who are now vaping, who overwhelmingly prefer the products he plans to ban, back to a much more dangerous source of nicotine.””

      Vaping does not pull in the tax dollars like cigarettes.

      I would like to see someone ask Cuomo why he won’t outright ban cigarettes because they kill more people than vaping.

      1. Vaping does not pull in the tax dollars like cigarettes.
        That is the real reason. It’s about the money, not safety.

      2. they certainy kill far more people than guns kill…… whut ’bout that raght thar?

    3. The US Constitution nor any US State Constitution provides the power to ban products or services.

      States can more easily amend their constitution to ban but they would need to since they don’t have plenary powers.

      1. Further, the XVIIIth Amendment was required to ban alcohol, why is a similar amendment not required to ban any product?

        1. Because the citizens were well educated back then?

  5. The War on Drugs isn’t about to end. And since Juuls and tobacco products are widely regarded as symbols of corporate America (kind of like giant soft drinks), don’t expect the progressives to side with you this time.

    1. What about Starbucks? I mean, they are getting the youngsters hooked on caffeine

      1. Now you done quit preachin’ and gone to meddlin’ – – – – –

  6. The current governor of NY is Andrew Cuomo, not Mario. And he sucks.

    1. Wrong. The current governor of New York is Fredo Cuomo.

      1. Fredo is on CNN. For some unknown reason.

    2. Correct.

      Mario Cuomo is a bridge.

      1. Beautiful bridge. Horrible that it is named for that POS.

        1. A first I thought it was silly to name the bridge after him, or any other politician. But since the bridge was an over budget boondoggle, I realized naming it after a politician was just.

  7. If the President can make laws when Congress refuses to do its job of making laws the President wants, surely the states can make laws when the Federal government refuses to do its job of making laws the states want. The Rule of Law doesn’t imply a Rule of No Law, whatever is not forbidden is permitted as far as the powers of government go. To assume that governments are limited to doing only those things specifically permitted to them by the People is to stand the whole Master/Servant relationship on its head. It is an absurdity to assume that the governed are the governors and the governors the governed, that the peasantry is entitled to dictate to the elite. No, the sovereign’s power is presumed to be unlimited and the privileges afforded to the subjects of the sovereign narrowly circumscribed.

    Don’t think too much about what the People can do when lawmakers refuse to do their jobs of making laws the People want. Or not making laws the People don’t want. When the People decide their rulers are no longer fit to rule, bad things tend to happen and the rulers find out just who the real rulers are.

    1. name one law Trump made by EO…………… he’s changed lots of POLICY as to how to enforce or interpret laws, and has made decisions in areas where the Executive Bransh has been specifically tasked with making them…..

  8. Since the “War in Drugs” is beginning to fade a little bit into the background, the nannies in government are simply adding to the list of banned substances of which they don’t “approve.” I mean, how the hell else are they going to keep getting all that tax money they used to get for enforcing drug laws?

    1. Someone’s gotta fill up all those jail cells left empty by MJ decriminalization- the only difference will be that the proggies won’t have any sympathy for nicotine addicts sent to solitary for 20 years

      1. They don’t want to send you to prison (the user) they want to send the corporate “pushers”. Which is funny because now that MJ is being slowly legalized in every state, it’s going to be funny to watch the new titans of the MJ industry being taken to task. You know it’s coming.

        1. Is lemon kush a “flavor”?

    2. It didn’t fade away because of the actions of these GOP bootlickers here in the comments. When is the last doobie toss they went to?

      1. i don’t always vote republican but when i do i’ve hit the lemon kush.

  9. Actually, I think this is an excellent precedent.

    Then the red state Governors can declare democratic politics illegal as they cause mental illness.
    Win – win – win – win.

  10. The problem with this website isn’t so much the writers, who hysteria about gun control aside, seem sensible enough. It’s these fucking Trumpian buttholes in the comments that make this place smell like a detention camp bathroom. Yuck!

    1. Yet here you are.

      1. I like to give these Team Red dickheads the finger. Do libertarians have a problem with that and, if so, why?

        1. This site does not need incompetent ignorant racists like you to abuse the Team Red dickheads.

        2. Why do it on a website? Go do it in person.

    2. “It’s these fucking Trumpian buttholes in the comments that make this place smell like a detention camp bathroom.”

      Didn’t smell anywhere near as bad until the fucking lefty ignoramus “LeaveTrumpAloneLibertarian” showed up.
      Fuck off and die far enough away so we don’t have to put up with the stink.

      1. Oh hi… I heard Dear Leader was in town. How was the rally? Did Trump put his huuge dick up your arse or did things remain platonic?

  11. Will they try the same idea to ban guns?

  12. I wonder why all the states where I can legally buy a THC vape pen when i’m Done shopping at the Safeway are run by Democrats. Hmmm…

    1. The voters got high.

    2. “I wonder why all the states where I can legally buy a THC vape pen when i’m Done shopping at the Safeway are run by Democrats. Hmmm…”

      I wonder when you’ll learn to construct a sentence in English.
      Fuck off and die far enough away so we don’t have to put up with the stink.

  13. Governors must have the authority to ban anything they don’t like.
    That includes free speech, guns, due process, cottage cheese, tricycles from those evil three year kids, toilet paper, clean water, electricity, cumulus clouds, sunspots, people with blue eyes, shoes, cashews or any other nefarious items.
    Absolute power, absolutely!
    It’s the only way!
    Socialism forever!

  14. If you want the state to pay the piper when it comes to healthcare you shouldn’t be surprised when it wants to call the tune

  15. 1 Samuel 8: If you have a king, this is how he will treat you. He will force your sons to join his army. Some of them will ride in his chariots, some will serve in the cavalry, and others will run ahead of his own chariot.[c] 12 Some of them will be officers in charge of a thousand soldiers, and others will be in charge of fifty. Still others will have to farm the king’s land and harvest his crops, or make weapons and parts for his chariots. 13 Your daughters will have to make perfume or do his cooking and baking.

    14 The king will take your best fields, as well as your vineyards, and olive orchards and give them to his own officials. 15 He will also take a tenth of your grain and grapes and give it to his officers and officials.

    16 The king will take your slaves and your best young men and your donkeys and make them do his work. 17 He will also take a tenth of your sheep and goats. You will become the king’s slaves, 18 and you will finally cry out for the Lord to save you from the king you wanted. But the Lord won’t answer your prayers.

    1. One of my favorite biblical quotes.

      Only now it’s up to like half your sheep and goats.

  16. Cuomo (D) this week announced that he plans to impose an “emergency” ban on e-cigarettes in flavors other than tobacco and menthol.

    Emphasis added. RACIST!!

  17. Tobacco companies have been adding chemicals, flavorings, and sugars which form aldehydes to real cigarettes for years.

    This is such malarkey.

    1. Ah yes, Record Players and Malarkey. Joe Biden is the millennial’s candidate

  18. these guvn’rs makin a fuss ‘nout gittin their own way over on th’ restt of us make me wanna know two things about each one:
    WHAT MEDICAL OR SCIENTIFIC training to these goons have> Cause if they don’t, they they are practicing medicine without training or a license..

    I want to see open books on every aspect of their personal, and their state’s, financial circumstances, and particularly see how the tax dollars flow in and back out. NOW we can esamine the books and see WHY they want to do this…..

  19. Its difficult to find informative and accurate info but here I found…
    pressure washing

  20. To Newsom, the difference between mayor of governor and king is irrelevant.
    He knows what’s right and it’s his job to make sure the government enforces that at the point of a gun.

  21. I just got paid $6884 working off my workstation this month. Also, on the off chance that you surmise that is cool, my separated from companion has twin little children and made over $9k her first month. It feels so great profiting RE when other individuals need to work for such a great deal less.
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  22. Newsom didn’t ban flavored e-cigs because Dems in Calif. get a ton of money from the vaping lobby. Otherwise, he would ban flavors under an obscure law. And Cuomo wouldn’t mind if people started using cigarettes again to help with his tax deficits. E-cigs don’t face the same amount of taxes cigs do. It’s always about the money and has nothing to do with public safety.

  23. From all the negative comments about Whitmer, I’m surprised she was elected governor. Or, maybe governors, as all other high officials like the president, aren’t elected, but selected.
    “Mommy governor, please give me a helmet so I don’t hurt myself”

  24. If people are not smoking tobacco cigarettes, the government is not collecting the sin taxes to which it has become addicted.

    It is not about the over-hyped dangers of vaping. The government would rather be collecting taxes as people get their nicotine fix in a more harmful, heavily taxed format.

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