Court Lifts Michigan Vape Flavor Ban

As reported by the Detroit Free Press, the Michigan ban on flavored nicotine vape juices has been at least temporarily lifted.

The Michigan flavor ban was announced on September 4, 2019 and implemented on October 4, 2019. It barred the sale of all nicotine ejuices with characterizing flavors.

Characterizing Flavor: A distinguishable taste or aroma, other than the taste or aroma of Tobacco, imparted by Tobacco, either prior to or during use of the Tobacco Product or any byproduct produced by the Tobacco Product, including, but not limited to, tastes or aromas relating to menthol, mint, wintergreen, any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, nut or spice.

Tobacco flavored ejuices, cartridges and pods were still permitted, as were flavored nicotine free vape juices. This last was more a concession to the CBD industry than a sign of sympathy for vaping hobbyists who enjoy zero nicotine ejuices.

Flavor Ban Drives Adults to Smoke

Court of Claims Judge Cynthia Stephens cited evidence that adults could return to smoking more harmful products with the ban in place. She also pointed out that the government’s delay imposing the ban undercut the argument that there was an emergency. Moreover, the teen vaping epidemic has been in the news for at least 18 months.

The case is by no means decided, but any check to the anti-vaping movement is a victory. It will also give health authorities more time to determine and disseminate information on the cause of the vaping lung disease.

At this time, no commercially available nicotine delivery system has been blamed in any of the cases. The state of Utah has unequivocally blamed oil-based thickening agents used in THC cartridges. This contrasts sharply with Michigan’s intentionally obtuse treatment of vaping lung disease.

Michigan Reluctant to Blame THC Cartridges

The path for Governor Whitmer’s emergency ban was paved by the careless reporting of vaping lung disease. Media coverage largely conflated the use of black market THC cartridges and commercially available nicotine products. Whitmer, who sought votes from cannabis advocates and was a strong backer of hemp farming in Michigan, was hesitant to draw attention to this connection.

Whitmer’s hesitancy was reflected in the state’s refusal to reference THC vaping on their Department of Health and Human Services website. As reported the Detroit Metro Times, Michigan did not include a single reference to THC vaping until October 4, 2019. “The number of Michigan residents sickened with a severe lung illness primarily tied to black-market cannabis vaping has doubled in the past 10 days, reaching 30 confirmed or probable cases.”

Whitmer’s government was less than forthcoming about this fact. This failure to warn the state’s citizens about vitamin E thickeners in black market THC cartridges, directly coincided with her efforts to punishing marginalized groups with strict e-cig laws,

Teen Vaping Epidemic

Whitmer was able to declare a health emergency and impose a vape ban because Michigan’s administrative rules process allows state regulations or policies to act as laws, once they are authorized.

Marc Slis, owner of 906 Vapor was instrumental in both the lawsuit which led to the court injunction and bringing attention to the flaws in the Michigan flavor ban, which was a huge blow to the state’s vaping industry.

A ban on flavored nicotine ecigs would likely benefit Phillip Morris, whose FDA approved iQOS would not be impacted and would suddenly find itself without much, if any, competition.

A study conducted by Dr. Farsalino that surveyed 69,000 adult vapers found that a majority of adult vapers prefer flavored vape juice. If tobacco vape juice flavors are the only option, the heat not burn technology of the iQOS suddenly becomes far more appealing. Especially with the alarmist headlines that have surrounded vaping in recent months, and if the most popular flavors for adults are removed from the market.

Juul Mint remains the most popular flavor with minors, a fact often overlooked by critics of vaping flavors, who instead fixate on flavor profiles based on 1980s sugar coated cereals and candies. Retro ejuice packaging targets adult vapers.

The Appellate Court temporarily blocked the New York flavor ban, a ban which supposedly addressed teen vaping yet left Juul’s popular Mint and other menthol flavored vapes on the market.

Laws to Limit Nicotine Levels

At the height of the flavor ban, Michigan State Representative Steve Johnson proposed legislation that would lift the flavor ban on ejuices with less than 2 percent nicotine. This approach shifted blame back onto nic salts, whose arrival on the market with the discrete, silent and nearly vaporless Juul device, coincided with the spike in teen vaping. We examine this technological innovation in our feature: The Truth and Technology Behind Juul and Nic Salts Revealed.

It was refreshing for a politician to blame the addictive characteristics of nicotine and not characterizing flavors as the true catalyst of underage vaping.

A similar approach was submitted at the federal level by Illinois Congressman Raja Krishamoorthi. H.R. 4624 would, “Amend the Federal Food, Drug, and Cosmetic Act to establish a tobacco product standard prohibiting any e-liquid with a concentration of nicotine higher than 20 milligrams per milliliter, and for other purposes.”

The primary issue with the nicotine limit approach, which has proven effective at keeping teen vaping at a lower level in the UK, is that nic salt vape pod systems are also preferred by the majority of adult vapers.

It is also important to note that the Juul device is rendered far less effective when nicotine levels are lowered. It lacks the atomizer power and battery capacity to hack its way through lower nicotine ejuices in a satisfactory manner. It is clearly an effective device, albeit one without an off-ramp and no low nicotine options. For a deep-dive into the world of nicotine salts, check out our feature "What is Salt Nic?"

Perhaps it is time to once again look at age verification and education as the keys to combating high-risk teen behaviors. This approach has worked wonders, as risky teen behaviors have been slashed in the last 20 years.

The San Francisco model of punishing marginalized populations and betraying their traditions of harm reduction with ecig prohibition could result in a national health crisis if widely adopted, according to health experts. After a harsh summer for vaping, we were approaching the point where this theory would be tested on smokers across the nation. Hopefully, cooler heads will prevail this fall.