CHICAGO — Montana Gov. Steve Bullock recently became the latest state leader to use executive action to restrict or ban the sale of flavored vaping products since early fall, a swift and sweeping set of circumstances not boding well for the burgeoning nicotine-delivery category.
“Young Montanans are using e-cigarettes at an alarming rate while officials investigate the possible causes of a national outbreak of e-cigarette-related injury and death, leaving us at a crossroads,” Bullock said in an Oct. 8 press conference. “Today, I choose action.”
The separate decisions from the governors or health officials in Massachusetts, Michigan, New York, Oregon, Rhode Island, Utah, Washington state and now Montana occurred either just before or soon after federal officials, along with support from President Donald Trump, expressed concern about a number of reported deaths and respiratory illnesses potentially related to vaping.
While the U.S. Food and Drug Administration (FDA) and the Centers for Disease Control and Prevention (CDC) could not definitively name e-cigarettes as a cause, those governors nonetheless took decisive steps against the products.
Here’s a recap of activity around flavored vaping products …
On Oct. 8, Montana Gov. Steve Bullock directed the state health department to implement an emergency rule prohibiting the sale of flavored e-cigarettes for 120 days, the maximum allowed by state law, according to the governor’s website. That clock was to start Oct. 22, so the ban will expire, at latest, on Feb. 19, 2020.
According to the order itself, a person shall not sell, offer for sale, give or otherwise distribute flavored vapor products to persons within the state. The rule includes online sales. Transporting flavored vapor products for sale within the state is also now prohibited.
Violation of the emergency rule is a misdemeanor punishable by a prison term of up to 90 days and a fine of up to $500, the website said.
Since the initial publishing of this post, a judge in the Ravalli County District Court for the State of Montana on Oct. 18 issued a temporary restraining order prohibiting the Montana Department of Public Health and Human Services from enforcing the temporary emergency rule banning the distribution, transportation and sale of flavored vaping products, according to court documents. This temporary restraining order was issued in response to a lawsuit filed by the Montana Smokefree Association and two vape shops against the Montana Department of Public Health and Human Services and the governor.
On Oct. 4, Oregon Gov. Kate Brown issued an executive order to the state health department to ban flavored vaping products, effective for 180 days. The order also asked the Oregon Health Authority and the Oregon Liquor Control Commission to investigate the causes of vaping-associated lung injuries or death and take steps to ban the sale of products tied to those causes.
Plans for consumer warnings, ingredient disclosures, testing and similar actions are also mentioned in the order.
Since the initial publishing of this post, the Court of Appeals for the State of Oregon issued an temporary stay Oct. 17 on the emergency administrative rule, in response to a lawsuit filed by the Vapor Technology Association and two vape shops against the Oregon Health Authority, according to court documents.
An order from the Utah Department of Health issued Oct. 2 restricted the sale of flavored e-cigarettes and vaping products only to “retail tobacco specialty businesses.” Those specialty businesses had to have tobacco products account for more than 35% of quarterly gross receipts, as well as meet other criteria. After speaking with local retailers, health officials announced that while the order went into effect as initially planned Oct. 7, enforcement action was to begin Oct. 21, according to Fox News.
The emergency rule will be in place for 120 days.
On Sept. 27, Washington Gov. Jay Inslee issued an executive order that directed the state board of health to draft emergency regulations prohibiting the sale of all flavored vaping devices, including products with tetrahydrocannabinol (THC) even though recreational and medicinal marijuana is legal there.
On Oct. 9, the Washington State Board of Health met and adopted those regulations, which went into effect Oct. 10. The new rules ban the sale of flavored vapor products, including flavored THC vapor products; require retailers to display a sign warning of the risk of lung disease associated with use of vapor products; and require reporting of cases of lung injury associated with the use of vapor products from healthcare providers and healthcare facilities.
Going further than other states on the matter, Massachusetts Gov. Charlie Baker declared a public health emergency and called for a four-month statewide ban on the sale of flavored and nonflavored vaping products in both retail stores and online.
The sales ban applies to all vaping products and devices, including tobacco and marijuana, officials said, and lasts through Jan. 25, 2020.
“The use of e-cigarettes and marijuana vaping products is exploding and we are seeing reports of serious lung illnesses, particularly in our young people,” Baker said. “The purpose of this public health emergency is to temporarily pause all sales of vaping products so that we can work with our medical experts to identify what is making people sick and how to better regulate these products to protect the health of our residents.”
On Oct. 21, the Suffolk County Superior Court in Massachusetts issued a preliminary injunction against the commissioner of the Massachusetts Department of Public Health from enforcing the emergency order banning the display and sale of all nicotine vaping products from and after Oct. 28, 2019, unless the Massachusetts Executive Branch issues an emergency order in compliance with Massachusetts law. The law requires that the state give notice to the public of a proposed regulation, hold a public hearing to allow for testimony and to obtain information, and compile and issue a small business impact statement.
On Sept. 15, New York Gov. Andrew Cuomo issued an executive measure to ban flavored vaping products, which would not include menthol- and tobacco-flavored vaping products. Then on Sept. 17, officials with the New York Department of Health voted to enact the rule for a 90-day period, according to CNN.
“New York is confronting this crisis head-on, and today we are taking another nation-leading step to combat a public health emergency,” Cuomo said at a press conference. “Manufacturers of fruit- and candy-flavored e-cigarettes are intentionally and recklessly targeting young people, and today we’re taking action to put an end to it. At the same time, unscrupulous stores are knowingly selling vaping products to underage youth—those retailers are now on notice that we are ramping up enforcement and they will be caught and prosecuted.”
Michigan Gov. Gretchen Whitmer announced a ban on flavored tobacco products Sept. 4. The rule includes flavored electronic-nicotine delivery systems such as e-cigarettes, hookah pens, vape pens and vaporizers, as well as flavored alternative nicotine products such as pouches and dissolvable lozenges.
On Oct. 15, a Michigan Court of Claims judge granted an injunction delaying enactment of the rule, finding that the local businesses suing the state had a “compelling case,” court documents said.