Vape, JUUL, e-cigarettes, whatever we want to call them, have been the latest and greatest craze in smoking. Vapor products, aka Tobacco Harm Reduction (“THR”) products, were originally marketed as a ‘safer alternative’ by providing a less harmful product.
Based on the Centers for Disease Control and Prevention (CDC) reports, the number of smokers as a percentage of the U.S. population dropped significantly from 20.6% in 2009, when THR products first gained popularity, to 15.5% in 2016. Smoke shops and other stores began carrying the products, and soon, vape shops came into the mix. It seems everyone, everywhere, is vaping.
Is vaping safe? Is it killing our children? Should we regulate it? If so, how? The questions and controversies surrounding vaping are many and varied. 26 cases of vape-related lung disease deaths were found in the U.S. last year, with one of the cases in Michigan. The Michigan Department of Health and Human Services (MDHHS) reported 35 overall cases of vape related lung disease.
The statistics, taken on their own, are enough to scare a parent into thinking their child is going to die from vaping. However, there seems to be a disconnect, as there is no proven causal link between lawful THR products purchased from retailers and the news reports related to “lung issues.” Rather, the CDC has issued warnings against using “homemade” vaping products. This state’s vaping ban could exacerbate the very issue the CDC is concerned about, by creating an environment ripe for more black market “homemade” vaping products.
On September 4, 2019, Governor Whitmer made national news by announcing that Michigan would become the first state to ban flavored e-cigarettes. A great deal of controversy surrounds this ban, as it was not created by a legislative body; rather, MDHHS (an administrative agency) made the determination that flavored vape is a public safety concern and, therefore, requires a criminal penalty. Not a fine, not a regulation – jail time of up to 6 months.
This is controversial because State agencies do not have the authority to create laws. Such power is inherent in the legislature’s duties. Michigan courts agree they have overwhelmingly ruled that agencies are not a legislative body and cannot create laws.
Michigan officials are creatively attempting to bypass the process and rely on a law that should only be invoked during emergency situations, to protect the public. The state relies on MCL 333.2226(d), which provides that a department may exercise authority and promulgate rules to safeguard the public health. The state is arguing that flavored vape is so dangerous to the public that it must be criminalized.
Such law is not applicable in this matter. The state has failed to make the necessary showing of emergency and failed to weigh the factors of how criminalizing flavored vaping is somehow a “necessary means to protect the public.” This ban merely provides the state the opportunity to incarcerate more non-violent offenders. The added penalty of criminalizing the sale of flavored vape products, as opposed to imposing a fine or some other deterrent, seems extreme under the circumstances.
Lesser means could have been taken; just as they are on other (proven) harmful products like cigarettes, liquor, and sugary drinks. For example, the legislature could: (1) require reliable age verification systems; (2) increase the age required to purchase the products to 21; (3) impose taxes on vape products; (4) restrict advertising; and/or (5) restrict the flavor names and label images so they do not appeal to children.
While we can all agree vaping is growing at a rapid rate and has the potential for abuse with the associated health ramifications, our legislators have the necessary tools to ensure the safety of the public without imposing harsh criminal laws.
Just recently, a group of business owners challenged the regulation and asked for a preliminary injunction, which was granted by the Court. This is not a judgment on the merits of the law, but does mean that there is a pause and the ban where the state will not be able to enforce the emergency rules until further order from the court. Without hesitation, Whitmer vowed to seek a “quick and final ruling” from the Michigan Supreme Court. “This decision is wrong,” the governor said in a statement. “It misreads the law and sets a dangerous precedent of a court second-guessing the expert judgment of public health officials dealing with a crisis.”
Governor Whitmer filed an application for emergency leave with the Michigan Court of Appeals and asked the Michigan Supreme Court to take the case directly on Friday, October 25.
Dana Nessel, Michigan’s attorney general, also indicated that she plans to appeal the injunction. While it remains to be seen how the court will rule, I fully expect the court to agree with Michigan’s longstanding precedent and find that MDHHS does not have the authority to create a non-regulatory criminal law that deprives people of their liberties.
Regardless of how the court rules, the state should not lock up a vape shop owner for selling vanilla vape. They should not punish an adult for smoking a mango JUUL. It is unconstitutional to circumvent the system and allow MDHHS to create criminal law. There are less invasive means to protect the health of the public. If the goal is to keep the public safe, I don’t think the criminalization of vape products accomplishes that.
What are your thoughts?
Nora Y. Hanna, Esq.
Nora is an attorney with Fieger Law in Southfield. She is a trial lawyer specializing in personal injury.