Michigan Governor’s Dazed and Confused Anti-Vape Regulation

Marijuana? Blaze on! 

Vaping? Hell no!

These dazed, confused, and conflicting messages are coming from none other than Michigan Governor Gretchen Whitmer, who this week wielded her mighty pen of regulation and made her state the first in the nation to ban the sale of flavored vaping products. 

Though her goal is noble —to prevent children from vaping —her overly broad solution infringes on the rights of law-abiding adults and the livelihood of business owners, and it could make the problem worse, not better. And that says nothing of the regulation’s seeming arbitrariness, at least seen in the light of the governor’s support for recreational marijuana.

A few key points and questions:

• No one wants kids to vape, and concerns about vaping-related illness are valid. However, Michigan already banned the sale of vape products to children, and the products are also regulated by the federal government. 
• Reports of vaping-related illnesses are thought to be tied to vaped liquids that contain ingredients from cannabis, such as THC, which is already illegal. 
• If government already regulates these products, how will more regulation solve the problem? 
• Banning the sale of regulated products will likely lead to the growth of an entirely unregulated black market to meet demand (see also: marijuana), which could cause even more harm.
• Smokers have been turning to vaping as a less harmful alternative to cigarettes. That’s a good thing. Vaping produces no fire and no combustion, which are the things that make cigarettes so harmful. 
• By banning the sale of flavored vaping products, Whitmer is preventing adults from legally purchasing them, grossly restricting their options. What are the public health consequences if Whitmer’s actions drive those consumers back to cigarettes?
• Business owners across Michigan will be significantly harmed by the regulations because they will no longer be able to sell a popular product to adults.

Now, for some background. Five months ago, Whitmer celebrated her state’s legalization of recreational marijuana with a video message to partiers in the university town of Ann Arbor who were reveling at Hash Bash, an annual celebration of all things weed. Whitmer, who campaigned in favor of the issue in 2018, hailed the state’s newfound freedom and proclaimed, “Stay safe and have fun at Hash Bash 2019!” 

Today, Whitmer’s support for adults to legally consume products of their choosing has gone up in smoke, at least when it comes to vaping. Her actions come amid a rash of stories regarding increased use of e-cigarettes among minors, in addition to reports of a “mysterious vaping illness” that have recently emerged in the media. Those cases, though, may be the result of counterfeit products, as former U.S. Food and Drug Administration commissioner Dr. Scott Gottlieb recently said in an interview with Kaiser Health News. Likewise, the Centers for Disease Control issued recommendations last week cautioning against the purchase of bootlegged vaping products.

Gottlieb has expressed his concern about youth vaping, but he also has acknowledged the benefit of vaping (aka e-cigarettes) for smokers. “I thought e-cigarettes at the time — and I still believe — that they represent an opportunity for currently addicted adult smokers to transition off of combustible tobacco.” Those adults will now see their options limited under Whitmer’s rule. And likewise, the business owners who sell them products are going to suffer the costs of her regulation.

“I can’t see any vape shops staying open,” says Nas Salah, owner of Advanced Vapors in Michigan. “If you ban all flavoring, your vape products are pretty much pointless. I haven’t met one person that vapes non-flavored e-liquid. It just doesn’t taste good.” 

Though Michigan is the first state to face an outright ban on flavored e-cigs, it’s not alone in regulating the products. Oregon recently enacted regulations that prohibit vape shops from providing accurate information to their customers about legal products, such as using the word “strawberry” to describe a product that tastes like strawberries. Entrepreneur Paul Bates, the owner of Portland vape shop Division Vapor, opened his shop after vaping helped him quit smoking. He wanted to help others do the same, but now the government is standing in his way. 

“I started this business about five years ago, and it’s been hugely rewarding. We’re switching people from smoking to non-smokers, and yet now we have a law that prevents and stops us from having freedom of expression,” Bates said. The Goldwater Institute filed a lawsuit on behalf of Bates to challenge Oregon’s overly broad anti-speech regulations.

So what’s the alternative if our goal is to protect children from harmful products? It turns out that’s possible. Just like we do with beer, pot, and tobacco, we can protect kids while allowing adults to use a product that is safer than any of them.

For the time being, at least Bates can still sell his products — though he can’t legally say what those products taste like. Vape store owners in Michigan won’t be so lucky if Whitmer’s regulation stands. And whether adult consumers like it or not, they will suffer from the prohibition, as well. But at least they’ll be able to smoke a joint with Whitmer … unless she changes her mind.