It has been a trying time for vapers, vaping, and the vapor industry in general. From flavor bans, to exaggerated medical claims – we are being hit hard and frequently, and with just cause according to the minds of politicians, community decision makers, and anti-vaping advocates. Unfortunately, it appears that the scrutiny and political beatings will continue, at least for the time being.
They could have at least bought us dinner first.
As of the date of this article, Rhode Island, New York, and Michigan have implemented some sort of “state-of-emergency” concerning vape products in some capacity. Either with “flavor bans” or complete bans of all things vape related. Regardless of whether it contains nicotine, or THC. Washington State, Ohio, Massachusetts, Virginia, Connecticut, and Oregon seem to be following suit with upcoming announcements and declarations in the coming days. Finally, the White House is of course still in the midst of considering the imposition of a “federal ban” on flavored vapes and it appears that the plan is still in full motion even with the backlash faced by current vapers and advocating groups.
Taking the above into consideration, we, like many others, are concerned for the future of vaping and vape products. Because of the legislative actions being taken to curb youth/teen smoking and vaping, we are seeing numerous retail stores and manufacturers being shut down due to the lack of sales and the ramping up of prohibition. Not to mention the increase of relapses in using cigarettes and tobacco products from those who initially relied on vaping to stop smoking.
This is what we know about the states that have enacted “bans” on vaping products:
The Rhode Island Dept. of Health, as directed by Gov. Gina Raimondo, is creating regulations banning flavored vape products. These regulations will be enforced by local police agencies, the Rhode Island State Police, the Rhode Island Department of Behavioral Healthcare, and the attorney general’s office. The ban will be effective for four months, currently.
As of September 19, 2019, Michigan’s Department of Health and Human Services issued regulations prohibiting the sales of flavored vaping products, except for tobacco flavored products. Retailers have 14 days to comply by removing or liquidating products from their shelves. The ban will be in effect for six months, and the Michigan DHSS will have prepared a permanent rule to replace the temporary rule by the time the current (temporary) rule expires.
As of September 18, 2019, New York’s government successfully banned all flavored vaping products, including menthol flavors, while continuing to allow the sale of tobacco flavored products in retail stores and outlets. Retailers have 14 days to clear their inventory of flavored vape products.
Lawsuits and Legalities
In response to the numerous vape product bans across the states, many associations, groups, and individuals have responsed to regulating bodies and local governments with lawsuits attempting to stop prohibition, and reverse the rules and regulations put in place to curb the “youth vaping epidemic”. The Vapor Technology Association, one of the largest vaping groups/advocates currently in existence, filed a lawsuit with the New York Supreme Court (Albany) against the Governor, the Department of Health for New York, and the Public Health and Health Planning Council.
The lawsuit, according to official court documents, seeks Annulment, Declaratory Judgment, and Preliminary and Permanent Injunctive relief on the basis that “The Emergency Rule imposing a ban on non-tobacco- and non-menthol-flavored vapor products enacted by Respondents exceeds their statutory authority, is arbitrary and capricious, and fails to comply with the State Administrative Procedure Act.” (VaporTechnology.org, 2019).
In other words, the VTA (Vapor Technology Association) is implying that the Gov. of New York and involved regulatory bodies didn’t have the authority necessary to enact such a ban in the first place. The VTA wants a “declaratory judgment permanent injunction” that the Emergency Rule (flavor ban) is “ultra vires, void, and unenforceable”. (VaporTechnology.org, 2019).
The filed suit continues to explain the implications of this rule to the court by outlining that “virtually all of the over 700 businesses that comprise New York’s vapor products industry confront the same imminent fate”, closure. The general public will also be affected as many vapers who are using vape products for tobacco cessation do in fact favor flavored e-liquids compared to strictly tobacco flavored alternatives. For many current and previous smokers, the flavor of the cigarette is not why they smoked. They smoked due to the chemical addiction to nicotine. Those same individuals started vaping in order to continue to receive nicotine from a safer delivery system – vaping. (VaporTechnology.org, 2019).
The VTA filing suit against New York, et al., is only the beginning. Many local associations, groups, and individuals have all joined the fight against prohibition of vaping and vaping products. In Michigan, a group formed by local business owners, Defend MI Rights, is ramping up their efforts and is expected to file suit with the State of Michigan in the coming days/weeks. Two bills (HB 4996 and HB 5019) introduced by Michigan Legislature could stop the ban, or at the very least, prevent the entirety of vaping products from being prohibited. HB 4996 would prevent the state from being able to ban vapor products while the newer bill, HB 5019 would prohibit sales of vape products containing more than 2% nicotine (20mg/ml).
The CDC has played a major role in contributing to the exaggerated information related to lung disease “outbreaks” in various states. The driving force behind many of the lung related injuries is in fact the sale and consumption of “black market” THC oil, not the nicotine based e-liquid which is used in smoking cessation efforts and has been deemed much safer than traditional cigarettes on more than one occasion, by more than one professional group.
Leafly, a company dedicated to the education, science, and users of Cannabis, published an article that outlines the illegal cannabis supply chain from China to the US and explains how producers use various harmful chemicals to “enhance” their product, when in reality, those enhancements are what is harming users and is often the culprit of lung issues related to “vaping” – not the nicotine containing e-liquid that many of us rely on for continued smoking cessation efforts. (See article link in reference section).
As vapers, our only option moving forward is to continue to advocate for our industry in the most appropriate, and legal ways, all the while contributing, and funding education and research related to vaping and its health effects. Prohibition is often due to lack of understanding. As a community, is our duty to educate those who do not understand why vaping is so important to us, for us, and for the community at large. We have made it this far, and we still have fight left in us. SVBS
Vapor Technology Association. (September 24, 2019). VTA vs. State of New York, et al. Retrieved from: https://vaportechnology.org/wp-content/uploads/2019/09/2019-09-24-Verified-Petition-New-York.pdf
Leafly. (September 24, 2019). Journey of a tainted vape cartridge: from China’s labs to your lungs. Retrieved from: https://www.leafly.com/news/politics/vape-pen-injury-supply-chain-investigation-leafly