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.