The moment Michigan Gov. Gretchen Whitmer, a Democrat, announced that she was banning flavored e-cigarettes, she was met with praise from an echo chamber.
Groups like the American Heart Association or the Campaign for Tobacco-Free Kids, both prominent tobacco control advocacy organizations, cheered.
“Whitmer has taken necessary and appropriate emergency action to address the growing epidemic of youth e-cigarette use by suspending sales of all flavored e-cigarettes in the state,” reads a joint statement from both organizations and a coalition of other groups like the American Lung Association, the American Cancer Society Cancer Action Network, and the Truth Initiative. “The youth e-cigarette epidemic is nothing short of a public health emergency that must be urgently confronted.”
Whitmer’s executive order comes as anti-vaping interests gain new fervor. New York Gov. Andrew Cuomo, also a Democrat, announced that he is directing his administration to investigate vape companies and their manufacturing processes.
Cuomo, in a press conference, also voiced his interest in banning flavors, as Whitmer did, in the near future. A source of mine employed by the New York State Department of Health speculates that Cuomo’s proposed ban will come in the form of a public health emergency declaration.
“This is a frightening public health phenomenon,” Cuomo warned during this press conference.
Michael Bloomberg, the controversial billionaire owner of Bloomberg L.P., also announced that he has committed $160 million to ban e-cigarette flavors nationwide. In partnership with the Campaign for Tobacco-Free Kids, the billionaire’s charitable foundation Bloomberg Philanthropies will work to end flavored e-cigarette sales ostensibly for the protection of the children.
“We will help at least 20 cities and states pass laws banning all flavored tobacco and e-cigarettes,” Bloomberg wrote in a recent New York Times commentary piece he co-authored with Matthew Myers, the president of the Campaign for Tobacco-Free Kids. “We will evaluate the impact of these rules on youth use and share lessons with other cities and states.”
A potential catastrophe?
These new developments from the tobacco control space demonstrate a lack of remorse.
In Michigan, the fallout from Whitmer’s flavor ban has the potential to be devastating to local businesses and statewide public health.
Vaping Post recently commissioned me to write and publish a special report documenting the cost the flavor ban is likely to have on tobacco harm reduction efforts in the state. In that piece, I quoted Michael Siegel, a professor of community health sciences at Boston University, condemning the ban as a potential catastrophe.
I followed up with Siegel, asking him to specify his concerns.
“The majority of adult vapers prefer flavored e-cigarette products,” he said in an email. “The tobacco and menthol flavors are used by a minority of vapers. One of the reasons for this is that the whole point of switching to vaping is to try to get away from smoking, including the taste. Also, the flavors themselves are appealing to many vapers, and add substantially to the enjoyment of the experience.”
Siegel’s logic additionally builds on the oft-cited Greek cardiologist Konstantinos Farsalinos, a fellow at the Onassis Cardiac Surgery Center in Athens, who has conducted extensive research into the public health applications of flavors.
“The possibility that an overly-restrictive regulation, such as banning the sales of specific flavor groups (especially fruit and dessert/pastry/bakery flavors), might prevent smokers from switching to e-cigarette use or may increase the relapse rate among former smokers who have managed to quit with the help of e-cigarettes,” Farsalinos has argued.
Legalization
Farsalinos posits the observation that restrictions on already available flavored e-cigarette products, or really any type of ban and subsequent criminalization, could inadvertently backfire.
A May 2019 study published in the academic journal Epidemiology by Australia and New Zealand-based researchers led by Frederieke S. Petrović-van der Deen of the University of Otago, in Wellington, found that vaping prohibition does not work, using New Zealand as an example.
Building on that research, Petrović-van der Deen’s fellow researchers, Tony Blakely of the University of Melbourne, and Coral Gartner of the University of Queensland, both in Australia, further argued that nicotine vape legalization in their home country could have a net gain for public health.
“The availability of alternative nicotine products, like e-cigarettes, that could be an acceptable substitute for smoked tobacco for existing smokers could make…innovative policy approaches viable options, and work toward improving the health of all Australians,” the researchers write for the University of Melbourne’s Pursuit blog.
No public forum
Regulatory regimes over e-cigarette products, on these justifications, should be risk proportionate and transparent.
The rulemaking pathway Whitmer’s ban goes down lacks both components. Whitmer informed the public that she is issuing her ban through public health emergency powers she’s legally entitled to use as the chief executive of the Michigan state government.
Michigan law states that the governor can implement a market restriction like the flavor ban if the state’s Department of Health and Human Services (MDHHS) files a “Finding of Emergency” with the Secretary of State. The special report I wrote about the ban touches on this briefly. However, it is certainly an important point for this argument.
When a “Finding of Emergency” is filed, the governor has the power to accept the apparent public health emergency and issue regulations without legislation or legislative approval. Under the state’s Administrative Procedures Act (APA) and Public Health Code, MDHHS can suspend any public notice and participation procedures if the finding for an emergency is dire. That means the Whitmer administration is not required to host hearings with the general public or stakeholders.
Trust me; when Whitmer assured that she can act “unilaterally,” she really meant it. One criticism of public health emergency rulemaking focuses on how a governor like Whitmer, or even the President of the United States, is essentially granted overly broad power. There is certainly an argument in favor of public health emergency rulemaking; however, Whitmer’s use of these powers is needlessly excessive and clearly politically motivated. If Whitmer balanced rulemaking and made sure product access would face minimal impact, the outcome would have been very different.
“I feel betrayed.”
The balanced rulemaking would also include input from industry groups, vape shop owners, and customers. Nothing like this happened. By design, Whitmer’s ban brings about more problems than solutions.
For starters, the flavor ban only gives vape shop owners—primarily single store operations at that—30 days to comply. Though the governor’s office has told me repeatedly that they will not comment further until the final order is drafted, I have no indication whether there will be any exemptions made for certain flavors.
The ban, nonetheless, will force many shops to close. For the shops that stay open, they are likely to go underground. Chances are, product access will be limited.
Experts like Siegel and Farsalinos all agree that product prohibitions like the flavor ban could force vapers who rely on sweet non-tobacco characterized flavors to switch back to traditional cigarettes.
I reached out to 40 vapers in Michigan. All of them from different parts of the state. 19 responded to my requests. For the sake of brevity, I’ve only included stories and remarks from local vapers who I felt were the most moving. The common concern among this diverse group of people ranging from 18 to people well in their 60s and 70s, of all walks of life, is that they feel Whitmer’s flavor ban will force them back to cigarettes.
“I feel betrayed, to be honest,” writes Matt DuCharme, a vaper from the town of Coldwater. “Betrayed by a government who is supposedly working for the people, in the sense that they would take such a dramatic action that will literally decimate an entire industry.”
DuCharme told me that he felt that the ban is a slippery slope. Better yet, a repeat of history.
“I fear that this action will not keep e-cigarettes out of the hands of minors, nor more than the prohibition of any item has ever stopped someone who was determined,” he lamented.
The return of more harm
DuCharme’s words are a haunting reminder. For many, vaping is a saving grace.
Michael Russell, the “father” of tobacco harm reduction, is best known in this field for being one of the first to question the methods of nicotine delivery. Nicotine is an addictive psychoactive substance that serves as the addictive element of smoking.
Russell noted: “It’s not the nicotine that kills half of all long-term smokers, it’s the delivery mechanism.”
This logic governs the tobacco harm reduction field and the associated elements of scientific research and public policy.
“The only thing that got me off those horrible cancer sticks was flavored vape juice,” says Georgia Fishell, a vaper from the village of Roscommon.
Fishell, who is 69, was a smoker for about 30 years. Her story is like so many, including my own. The moment she started vaping, she was able to stay away from combustible tobacco products. Flavors were important for making that switch and sticking to it, she said, adding that she feels that vaping is a cleaner form of nicotine delivery.
“With vaping, I feel healthier,” she said. “I don’t cough up that nasty stuff anymore and actually breathe like a healthy person.”
“I tried most of the products on the market to stop smoking to no avail. Vaping saved my life! Without flavors I’m dead,” Fishell declared.
Cassidy Dorman, a vaper from the township of Higgins Lake, has a similar belief.
“[I am] someone who went from a 3-pack a day smoker that could not walk a mile to vaping and regularly running 5K road races (which I could never have done while smoking cigarettes),” Dorman wrote in an email. “The decision to deny legal adults access to tobacco harm reduction/smoking cessation alternatives to combustible tobacco products makes so little sense that it completely baffles me.”
On the frontlines
Melissa Dutoi, 46, told me that she has a fear for people’s health, not just her own, because of the flavor ban.
“I fear that this ban will cause some, or even possibly most, to return to cigarettes,” she said. Dutoi lives in the town of Lake. If you have read my previous work, Kim Shilling Manor of Moose Jooce Vape Shops is a friend of mine and an occasional commentator.
Dutoi works for Manor in one of her three shop locations in Lake and Cadillac.
“The majority of my customers are over the age of 40,” she added. “They have expressed their concerns to me and tell me they don’t want to start smoking again. They are so proud of themselves for quitting. I can read the fear in their faces that they will return to cigarettes. It’s pretty heartbreaking.”
Dutoi voiced that she also feels that the fears associated with underaged vaping and the belief that sweet nicotine e-liquid flavors were made for and marketed to minors are misguided.
“My other concern is that people will start adding anything they can think of to their vape, which as far as I’m concerned is going to cause an exponential amount of health issues,” she said. “I personally feel that this ban is only hurting the law-abiding, tax-paying citizens of the state. If need be, raise the vaping age to 21 and only allow it to be sold in reputable vape shops that care more for people than the bottom line.”
Smoking young, vaping old
One common characteristic of the many stories I heard was that vaping changed the life of people who started smoking at young ages. Federal data shows that most adult smokers began before turning 18. For instance, I began smoking under the age of 12 and I was an “on-and-off” smoker for most of my teen years and into my first months of college.
Vaping, as I mentioned, is an escape from the years of tar and burning. So, it isn’t a surprise that many of the recent marketing trends from vape companies have been targeted at adult users who already smoke. Juul Labs, to note, has the most visibility in this respect through the company’s recent “Make The Switch” advertisement campaign targeting adults smokers over 35.
Adult vapers are most likely former smokers, too. Research supports this fact, as does the testimony many gave to me. Take Jen Hubert, for example.
Hubert, a native to Northern Michigan, forwarded me an email she sent to House Majority Floor Leader Triston Cole, R-Mancelona, where she describes her story of switching.
“I smoked for 23 years, starting at 15,” she wrote in the email. “I’ll be blatantly honest. Smoking combustible cigarettes was killing me. I tried to quit. Patches, gum, Chantix (gave me nightmares about killing people). None of it worked.”
She elaborated that once she switched from smoking to nicotine vaping, her life took a turn for the better. Her health improved, and she was able to start being a mother again.
“I’ve weaned down to the bare minimum of nicotine,” she wrote proudly. “I can now RUN with my kids…my 12-year-old and I just ran a 5K.”
Hubert also assured that she and her children, 16 and 12, have “open communication” about her vape.
“Neither of them has touched my vape,” she said. “Why wouldn’t you as a parent step up?”
Hubert’s story is not unique, either. Dennis Kaiser, a father of one, told me that vaping was a recent life-changing experience.
“I started smoking cigarettes at the age of 13 years old,” he said. “I was a pack a day, Newport menthol 100’s kind of guy. At almost 8 dollars a pack, quickly decreased health, and a 6-year-old little boy begging me to quit so I could grow old to watch him grow up, it was time for me to quit smoking.”
Kaiser started vaping out of necessity, which was a decision he made no more than two weeks ago.
“My roommate went out and bought me a Smok vape mod from Vape Ape in Mount Pleasant, Michigan, along with a bottle of fruit monster blueberry vape juice with only .3 mg of nicotine,” Kaiser told me. “At first, I had my vape in my hand constantly hitting it. But, not once, have I craved a cigarette since. I tried smoking a cigarette the morning after I got the vape, and the taste of a cigarette that I’ve smoked for 21 years turned my stomach. It tasted so disgusting, I put it out after only 3 hits.”
Kaiser’s story is very interesting to me, but not unique. This is especially the case when he said: “I will not quit vaping.”
Much of what these vapers told me are shared sentiments among millions who vape. People just won’t quit because of Whitmer’s flavor ban. Hopefully, this lesson will be learned one day soon.
Reporting from Michigan and Colorado.
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