LANSING, Mich. (AP/WOOD) — Michigan Gov. Gretchen Whitmer moved Wednesday to make her state the first to ban flavored electronic cigarettes, accusing companies of using candy flavors and deceptive advertising to “hook children on nicotine.”
The Democrat ordered the state health department to issue emergency rules that will prohibit the sale and misleading marketing of flavored nicotine vaping products.
“These are flavors that are geared towards kids. When they’re selling them, sometimes they’re right next to the candy, in fact. Marketing toward our children, they say your parents will never know because they plug in like a USB. This is deceptive, this is destructive, and most importantly it’s compromising our kids’ health,” Whitmer told our Lansing sister station WLNS in an exclusive interview.
Retailers would have 30 days to comply with the rules once they are filed in coming weeks. They will almost certainly be challenged in court.
New York last November began taking steps to bar the sale of flavored e-cigarettes but withdrew proposed rules to allow more time for legal review. The federal government and states ban the sale of vaping products to minors, but government survey figures show that last year, one in five U.S. high school students reported vaping in the previous month. Top government health officials, including the surgeon general, have flagged the trend as an epidemic.
“I’m living with two teenagers and I know that a lot of their friends are vaping. We see it every day, we see this constantly bombarding kids with this as a healthy option, getting kids hooked on nicotine before their brains are fully formed,” Whitmer said. “And now we’re seeing kids showing up with respiratory problems, so we know this is a national health crisis and it’s time for us to take action.”
As of last week, 215 possible cases of severe pulmonary disease associated with the use of e-cigarettes had been reported by 25 states, according to the Centers for Disease Control and Prevention. Michigan officials are investigating six such cases. Illinois health officials last month said a patient who contracted a serious lung disease after vaping died; they considered it the first death in the United States linked to the smoking alternative that has become popular with teens and young adults.
Whitmer’s announcement drew praise from public health groups and criticism from groups that advocate for vaping as an alternative to smoking.
“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,” said Gregory Conley, president of the American Vaping Association. “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.”
He said the ban would create a “massive” black market. He blamed the recent spate of lung illnesses on illegal vape pens that contain THC, the compound that gives marijuana its high.
Health experts say nicotine is harmful to developing brains, and some researchers worry that addicted teens will eventually switch from vaping to smoking.
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The rise in teen vaping has been driven mainly by flavored cartridge-based products such as Juul. The rechargeable, odorless device can be used discreetly in bathrooms, hallways and even classrooms.
“We know from the data that the flavorings are what bring them (teens) to the devices,” Dr. Shelley Schmidt of Spectrum Health told News 8 Wednesday.
A decade ago, Congress banned cigarettes with flavors other than menthol or tobacco.
“What we are seeing is another device to create nicotine addiction,” Schmidt said. “Nicotine is a federally legal substance just like alcohol, so it needs to be protected just like alcohol is from our kids and teenagers.”
She said that the brains of 15- and 16-year-olds are still developing, “so if nicotine or another addictive substance comes to the brain at that crucial time, then that addiction can be hardwired in the brain.”
She added that pediatricians are seeing more cases of shortness of breath, chest tightness and prolonged respiratory infections in teens.
“While we know we need to get cigarettes out of the hands of adult nicotine addicted smokers, we are simultaneously addicting a young group of people,” she said. “We can’t afford to wait another 50 years to deal with this problem like we did with traditional cigarettes.”
“We’ve got to do our best to get ahead of the problem,” Rockford Public Schools Superintendent Michael Shibler, Ph.D., agreed.
Local schools have also taken steps to stop students from vaping. Shibler said administrators will keep confiscating e-cigarettes, but he worries that without permanent action, they’ll keep coming back.
“Is this a fad and so forth? I’m not sure it is, because I think there’s so much information out there that’s quite frankly being promoted by the companies that make these,” he told News 8.
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Juul’s top executives have disputed allegations that they have marketed their products to teens, declaring that they have taken unprecedented steps to combat underage use of its e-cigarettes. The company has shut down its Facebook and Instagram pages and pulled its fruit- and desert- flavored pods out of retail stores. Juul also backs federal legislation to raise the minimum age to purchase all tobacco products, including e-cigarettes, to 21 nationwide.
“There is simply no place for kid-appealing flavors in the marketplace. That is why we would also support an outright ban on such flavors, including those that mimic kid-specific candies, foods, and drinks,” the company said in a statement responding to Whitmer’s decision.
As new of the ban broke, vapers in West Michigan started stocking up on flavored products.
“I want the actual facts, but I don’t see how one person can do an overnight ban,” Clark Wallace, who was among those buying, said. “It just seems ridiculous to me.”
He thinks that the move is going to push people who vape — including teens — to cigarettes.
“I think kids that want to smoke, before e-cigarettes came out, they smoked cigarettes,” he said. “I think it’s going to take a step back into the early ’90s late ’80s.”
Another customer, Axel Roest, agreed.
“Kids get cigarettes and stuff anyways,” he said. “I found them when I was under 18.”
He said he vapes as an alternative to smoking traditional cigarettes.
“My goal is to quit. It’s taking a little longer but I want to quit completely,” he said. “I haven’t had a cigarette in I don’t know how many months — close to a year probably.”
He was also annoyed at the governor dictating his choices.
“I don’t want to sit here a talk crap, but who is she to say how I live my life?” he said. “Fix the water problem in Flint and in Belmont. That’s what your promise was, not (expletive) with the rest of our lives.”
The Grand Rapids Police Department said in a statement to News 8 Wednesday evening that while it agreed a “‘black market’ will exist for all things illegal, our primary focus will be on educating and gaining compliance with our local stores.”
GRPD said the grace period before the new rules are in effect will make that easier and give law enforcement “time to sort through how we will respond from an enforcement standpoint.”
Electronic cigarettes, which have been available in the U.S. since about 2007 and have grown into a more than $6 billion-a-year industry, are battery-powered devices that typically heat a flavored nicotine solution into an inhalable aerosol. Juul, which launched in 2015, now controls roughly three-quarters of the U.S. retail market for e-cigarettes.
Most experts agree the aerosol is less harmful than cigarette smoke since it does not contain most of the cancer-causing byproducts of burning tobacco. But there is virtually no research on the long-term effects of the vaping chemicals, some of which are toxic.
“How many generations of people would’ve been better off had they done that around cigarettes, right? Just because it’s never been done doesn’t mean it’s not time to be a leader. It’s time for Michigan to show that we’re bold, that we protect our kids and that we’re going to lead the nation. And I think we’re going to find that other states follow,” the governor said.
JUUL’s entire statement:
“While we have not reviewed the full decision, we believe that strong and serious actions need to be taken around certain flavored products which is why we already stopped selling our non-tobacco/non-menthol based JUULpods to traditional retail stores, strongly support FDA’s draft guidance and are aggressively fighting against counterfeit and compatible flavored products which can appeal to youth and can be made with unknown ingredients, under unknown quality and manufacturing standards. There is simply no place for kid-appealing flavors in the marketplace. That is why we would also support an outright ban on such flavors, including those that mimic kid-specific candies, foods, and drinks.
“As for menthol-based products, including mint, we believe that to encourage adult smokers to switch from combustible use, the number one cause of preventable death in the world, they should be available at retail alongside tobacco and menthol-based cigarettes. To restrict youth access even in these stores, we strongly advocate for Tobacco 21 laws and are working with retailers to implement the strictest age-verification point-of-sale standards ever imposed for an age-restricted product at retail, far exceeding those in place for other tobacco products or for alcohol. Under JUUL Labs’ Retail Access Control Standards (RACS) program, a point-of-sale system at retail immediately locks when a JUUL product is scanned and remains locked until a retailer electronically scans a valid, of-age government-issued I.D. to verify both the age and the I.D. validity.”
Joost Vapor, which makes and sells e-liquid in West Michigan, also responded to Whitmer’s announcement:
“We commend the Governor’s focus of combating the underage vaping issue. Instead of initiating emergency powers that are bound to have drastic effects to many employees statewide and thousands of consumers, it would be more effective to work in a collaborative effort with our elected officials and industry leaders to combat the actual causes and offenders leading to underage nicotine use. At Joost Vapor, we have always chosen to have a very proactive and pro-regulation attitude regarding alternative nicotine products. We understand that the use of our products by underage individuals is unacceptable and have gone to great lengths to combat this. Joost Vapor has made reliable and effective policies and has already collaborated with our elected officials to help combat this issue. We offer to do so with the Governor to come up with common-sense, effective regulation that does not punish the consumers and employees of an entire industry.”
AP health writer Matthew Perrone in Washington and News 8’s Heather Walker and Jacqueline Francis in Grand Rapids contributed to this report.