FILE - Vaping e-cigarette flavors

E-cigarette flavors on a shelf at a vape shop.

State Rep. Beau LaFave says he’s working with House colleagues on a bill that would allow legal Michigan adults to vape flavored nicotine, dodging Michigan Gov. Gretchen Whitmers’ emergency order ban of the product in retail stores and online.

LaFave told The Center Square that his bill would clarify that the governor isn’t allowed to declare an emergency for this instance, which the lawmakers said extended “far beyond” the statute’s original intention.

Whitmer's order would give businesses a 30-day window to comply once the Department of Health and Human Services files the ban that will be effective immediately and last for a minimum of six months.

LaFave, R-Iron Mountain, said this ban wasn’t based on data or given a public hearing in the Joint Committee on Administrative Rules.

“To act like an emperor and to do it all on her own with no research, no forethought on how it’s going to affect the market is dangerous,” LaFave said. “It sets a terrible precedent that you can ban things that you don’t like.”

LaFave said he’d discuss alternatives to a full-out prohibition that would allow adults to use flavored nicotine to quit cigarettes, citing a United Kingdom study that found e-cigarettes are up to 95 percent less harmful than traditional cigarettes.

Guy Bentley, director of consumer freedom at The Reason Foundation, a libertarian-leaning nonprofit, told The Center Square that the flavored vaping ban ignores the concept of harm reduction.

“E-cigarettes are dramatically less harmful than combustible cigarettes and are the most popular product used by adult smokers to quit, and flavors are one of the principal draws from current smokers to switch to e-cigarettes and to keep them off cigarettes,” Bentley said.

Bentley cited a 2017 study, updated in 2019, that analyzed various flavor bans and concluded that banning e-cigarettes while keeping menthol and regular cigarettes legal would be “the worst possible outcome” for public health because smokers will have more choices in the cigarette market than the vaping market.

Bentley said this rule would shut down independent vape stores while global, multi-billion dollar companies like Juul will probably survive.

“I met literally dozens of business owners in the Capitol yesterday who, because of this rule, their businesses will just simply close,” Bentley said. “And the reason for that is that usually vape shops operate on very thin margins. And usually about 80 percent of their revenue comes from selling flavored e-liquid.”

There are more than 10 million people who vape in the country, Bentley said, adding that future legislative focus should be on limiting youth access while not banning the largest and most popular part of the adult market.

Bentley said the ban will bring an illicit nicotine market across state lines similar to problems with illicit THC marijuana cartridges that may have been associated with six deaths in the U.S.

“Are we going to solve the problems of the illegal cannabis market by creating an illegal nicotine market?” Bentley said. “We’re chasing our tails here.”

Bentley said the youth combustible cigarette smoking rate fell from 8.1 percent to 5.8 percent, a decline of 28.3 percent, which is the largest drop ever recorded in one year.

Bentley pointed to the Center for Disease Control and Prevention (CDC) data that minors use alcohol at about the same or a higher rate than youth vaping statistics, but we don’t ban flavored alcohol.

“If the governor is so insistent on outlawing everything that is bad for your health, what’s next? Fast food, fireworks or pop?” LaFave said in a statement. “Everyone agrees with the governor that e-cigarettes are unhealthy.”

Whitmer's ban categorizes any shop or person in possession of four or more flavored nicotine products as having "the intent to sell," a misdemeanor  punishable up to $200 and/or six months in jail per item.

Staff Reporter

Scott McClallen is a staff writer covering Michigan and Minnesota for The Center Square. A graduate of Hillsdale College, his work has appeared on Forbes.com and FEE.org. Previously, he worked as a financial analyst at Pepsi.