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Research & Commentary: Michigan Governor Proposes Flavor Ban That Would Further Harm Small Businesses

October 23, 2020

Gov. Gretchen Whitmer’s coordination with the Michigan Department of Health and Human Services is leading to new executive rulemaking processes that will allow the governor to enact a permanent flavor ban without legislative process.

Last year, Michigan Gov. Gretchen Whitmer enacted an “emergency” six-month flavor ban on vaping products, including mint and menthol, via an executive order and cooperation with the Michigan Department of Health and Human Services (MDHHS). Gov. Whitmer is now proposing another executive order that would harm Michigan vape shops and tobacco cessation efforts. This time, she is proposing a permanent ban on all flavors of nicotine-containing e-liquids, except for tobacco-flavored products.

The Michigan Department of Health and Human Services issued a public notice that they will issue new executive rulemaking processes that will allow Gov. Whitmer to directly affect this change without legislative process or a state ballot initiative.

The MDHHS rules would forbid “The selling, offering for sale, giving, transporting or distributing of flavored nicotine vapor products.” The rules also would prohibit possession with an intent to sell as well as the use of fraudulent or misleading terms to sell or distribute vapor products. MDHHS points to flavored vaping products appealing to youth as the reason Gov. Whitmer is pursuing such flavor bans. Overall, those supporting the executive order claim it will reduce youth vaping. However, data from recent flavor bans demonstrate this is far from inevitable.

Although addressing youth use of nicotine products is laudable, there is little evidence that flavor bans reduce youth e-cigarette use. Unquestionably, such a ban would devastate local vape shop owners in a time when Michigan residents and small business owners are already facing an uphill battle due to COVID-19 restrictions. Furthermore, an outright flavor ban would create a booming black market for flavored e-cigarettes that are consumed legally (as of now) by millions of American adults.

Heartland Institute experts have examined the effects of flavor bans, finding these measures to have no significant reduction on youth e-cigarette use. For example, Santa Clara County, California, banned flavored tobacco products to age-restricted stores in 2014. Despite this, youth e-cigarette use increased in the county thereafter. In the 2015-16 California Youth Tobacco Survey (CYTS), 7.5 percent of Santa Clara high school students reported current use of e-cigarettes. In the 2017-18 CYTS, this increased to 10.7 percent.

Furthermore, flavored products have helped millions of adults transition from combustible cigarettes to tobacco harm reduction products.  A 2018 survey of nearly 70,000 American adults shows 83.2 percent and 72.3 percent of survey respondents reported vaping fruit and dessert flavors, respectively. Additionally, only 20 percent of respondents reported using tobacco flavors at point of e-cigarette initiation.

The substantial decline in youth cigarette use is likely attributable to the rise in popularity of electronic cigarettes. Although youth use of e-cigarettes is worrisome, the 2018 data indicates that fewer students are vaping than when cigarette use was at an all-time high. In 2018, only 20.8 percent of students reported using e-cigarettes, which is a huge decrease from 1997, when 36 percent of high school students reported they smoked cigarettes. Use of any and all tobacco products was significantly lower in 2018 than 1997.

Despite fearmongering about a youth vaping epidemic, tobacco product use has decreased from 42.7 percent of high school students in 1997 to only 27.1 percent in 2018.  It is disingenuous that Gov. Whitmer would move to ban flavored nicotine products now, while the data show that these products have resulted in less youth tobacco use and are a valuable tool to help adults transition from much more harmful combustible cigarettes. Youth use of tobacco products is at an all-time low. Although addressing youth use of vaping products is worthwhile, flavor bans have had no reduction on youth e-cigarette use. If this executive order were to go into effect, it would likely drive teens back to smoking cigarettes or other substances, which are much deadlier. Even worse, an all-out ban on flavored e-cigarettes in Michigan would almost surely lead thousands of former smokers back to combustible cigarettes.

What’s more, a black market is all-but guaranteed to fill the void because the law of supply and demand is always victorious. MDHHS and Gov. Whitmer should refrain from enacting bans on vaping products and focus on adequately funding programs that address youth tobacco use, including education and prevention efforts.

And finally, following the coronavirus pandemic, small businesses in Michigan are still struggling to remain open after the mandated lockdown. Michigan still has 540,604 continuing unemployment claims. Placing additional regulations on businesses, specifically vape shops, in the current environment is the exact opposite approach Gov. Whitmer should be taking during this precarious economic period. According to the Vapor Technology Association, in 2018, the industry created 2,660 direct vaping-related jobs, including manufacture, retail, and wholesale jobs in Michigan, which generated $75 million in wages alone. Economic fallout from the governor’s proposed executive order is the perfect example as to why governors should not make executive decisions on a whim, and yet, this is how the proposed flavor ban is being approached.

The following articles provide more information on e-cigarettes and tobacco harm reduction.

Tobacco Harm Reduction 101: A Guidebook for Policymakers
https://www.heartland.org/publications-resources/publications/latest-heartland-policy-booklet-addresses-vaping-myths
This booklet from The Heartland Institute aims to inform key stakeholders on the much-needed information on the benefits of electronic cigarettes and vaping devices. Tobacco Harm Reduction 101details the history of e-cigarettes, including regulatory actions on these products. The booklet also explains the role of nicotine, addresses tax policy and debunks many of the myths associated with e-cigarettes, including assertions about “popcorn lung,” formaldehyde, and the so-called youth vaping epidemic.

Podcast Series: Voices of Vapers
https://www.heartland.org/multimedia/podcasts?fromDate=&toDate=&q=voices+of+vapers
In this weekly podcast series, State Government Relations Manager Lindsey Stroud talks with researchers, advocates, and policymakers about tobacco harm reduction and electronic cigarettes. The series provides important information about the thousands of entrepreneurs who have started small businesses thanks to THRs and the millions of adults that have used electronic cigarettes and vaping devices to quit smoking tobacco cigarettes.

Vaping, E-Cigarettes, and Public Policy Toward Alternatives to Smoking
https://www.heartland.org/publications-resources/publications/vaping-e-cigarettes-and-public-policy-toward-alternatives-to-smoking
For decades, lawmakers and regulators have used taxes, bans, and burdensome regulations as part of their attempt to reduce the negative health effects of smoking. Recently, some have sought to extend those policies to electronic cigarettes. This booklet from The Heartland Institute urges policymakers to re-think that tax-and-regulate strategy. Policymakers should be mindful of the extensive research that supports tobacco harm reduction and understand bans, excessive regulations, and high taxes on e-cigarettes often encourage smokers to continue using more-harmful traditional cigarette products.

Research & Commentary: Centers for Disease Control and Prevention Link Major of Vaping-Related Hospitalizations to THC Product
https://www.heartland.org/publications-resources/publications/research--commentary-centers-for-disease-control-and-prevention-link-majority-of-vaping-related-hospitalizations-to-thc-products
In this Research & Commentary, Heartland State Government Relations Manager Lindsey Stroud examines the Centers for Disease Control and Prevention’s Morbidity and Mortality Weekly Report which found nearly 77 percent of vaping-related hospitalizations are due to the use of tetrahydrocannabinol products. These findings are similar to what have been reported in other states, including Connecticut, Oregon, Texas, and Utah.

Research & Commentary: Flavor Bans Do Not Reduce Youth E-Cigarette Use
https://www.heartland.org/publications-resources/publications/research--commentary-flavor-bans-do-not-reduce-youth-e-cigarette-use
In this Research & Commentary, State Government Relations Manager Lindsey Stroud examines the California Youth Tobacco Survey results from 2017-18, finding youth vaping has increased in several California localities that have restricted access to flavored tobacco product. Stroud finds youth vaping has increased in both Santa Clara and Contra Costa counties. Stroud also notes that banning flavored e-cigarettes is likely to reduce the number of adult smokers switching from combustible cigarettes to tobacco harm reduction devices, and could lead former smokers back to cigarettes.

Research & Commentary: Qualitative Study on E-cigarettes Shows More Evidence of Tobacco Harm Reduction
https://www.heartland.org/publications-resources/publications/qualitative-study-on-e-cigarettes-shows-more-evidence-of-tobacco-harm-reduction?source=policybot
In this Research & Commentary, Heartland Institute State Government Relations Manager Lindsey Stroud examines a study, published in The International Journal of Environmental Research and Public Health in June 2016, that provides additional evidence showing e-cigarettes and vaporized nicotine products (VNPs) are an effective tobacco harm-reduction tool.

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Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. For further information on this and other topics, visit the Budget & Tax News website, The Heartland Institute’s website, our Consumer Freedom Lounge, and PolicyBot, Heartland’s free online research database.

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