SPECIAL REPORT


When the news broke that Michigan Gov. Gretchen Whitmer, a Democrat, intends to ban absolutely all flavors—including mint and menthol—for six months, I was astonished and upset. The governor unilaterally acted through her executive power to order an emergency administrative action.

Whitmer can also renew her ban for another period of six months once the first-period expires. And, as expected, legislation codifying the ban into state statute will be a priority for her administration during the coming 2020 legislative session.

Until any challenge is taken, Whitmer essentially destroyed an entirely legal industry across a state with more land area than the entirety of North and South Korea. 

“As governor, my number one priority is keeping our kids safe,” said Whitmer upon announcing her executive action. “And right now, companies selling vaping products are using candy flavors to hook children on nicotine and misleading claims to promote the belief that these products are safe. That ends today. Our kids deserve leaders who are going to fight to protect them. These bold steps will finally put an end to these irresponsible and deceptive practices and protect Michiganders’ public health.”

Whitmer’s press secretary, Tiffany Brown, told me that there is still work needed on the order.

“The rules have not yet been finalized and are still being drafted. They will be filed within the next few weeks,” Brown assured.

In an email sent to concerned citizens that I’ve obtained from a local vaper, Whitmer expanded on how her administration would implement the policy. (The letter has been snipped to protect the identity of the recipient and the contact information for Whitmer’s constituent relations staff.)

Thank you for taking the time to contact me regarding the ban I have ordered on flavored nicotine vaping products. I truly appreciate hearing from Michiganders from across the state and the opportunity to respond.

State agencies may develop and implement emergency rules whenever there is an emergency that endangers public health, safety, or welfare. (MCL 24.248.) After Michigan’s Chief Medical Executive Dr. Joneigh Khaldun, confirmed that youth vaping constitutes a public health emergency, I ordered the Michigan Department of Health and Human Services (MDHHS) to issue emergency rules to ban the sale of flavored nicotine vaping products in retail stores and online and ban misleading marketing of vaping products, including the use of terms like “clean,” “safe,” and “healthy” that perpetuate beliefs that these products are harmless. I have also ordered the Michigan Department of Transportation to enforce an existing statute to prohibit the advertisement of vapor products on billboards. These bold steps will finally put an end to these irresponsible and deceptive practices and protect Michiganders’ public health.

We have seen an explosive increase in the number of Michigan kids exposed to vaping products. From 2017 to 2018, e-cigarette use spiked 78% among high school students and 48% among middle school students. These products can contain harmful chemicals that put our kids’ health at risk. In fact, MDHHS just announced that they are currently investigating six reports of e-cigarette/vaping-associated respiratory illnesses, all diagnosed in the last 60 days. As governor and a parent, my number one priority is keeping our kids safe. Right now, companies are selling vaping products that use candy flavors to hook children on nicotine and using misleading claims to promote the belief that these products are safe. Nearly 90% of smokers start using nicotine before the age of 18 and 81% of youth e-cigarette users start with a flavored product. This makes the substantial surge of youth using flavored nicotine vape products a preventable public health crisis.

MDHHS will be taking a number of actions to make sure people understand how to comply. There is a website under development, and it will be available upon the launch of emergency rules.  Also, the MDHHS tobacco section has created a retailers’ packet that includes FAQ’s about compliance with the emergency rules. Along with local health departments, they plan to conduct regional meetings with retailers to answer questions about the emergency rules.

In June of this year, I made it known that recent legislation put forth by the legislature did not go far enough to protect Michigan’s kids from nicotine addiction. I was clear that the marketing, packaging, and taste of e-cigarettes amounted to a bait-and-switch engineered to create new nicotine addicts. Our kids deserve leaders who are going to fight to protect them, and it’s my responsibility to ensure that these dangerous marketing tactics are put to an end.

At the bottom of Whitmer’s email, she additional points to the latest information available at the state’s Department of Health and Human Services (MDHHS) website. There, more details are available about Whitmer’s plan and how it would be enforced.

If you read through the document entitled “Finding of Emergency,” Whitmer and MDHHS director Robert Gordon offer a more direct break down of the logic behind the order to ban flavors.

(A PDF version of the “Finding of Emergency” can be accessed on the MDHHS website.)

***

“Lovejoy’s law” and the law of unintended consequences

Both the email and this Finding of Emergency document recycle some misguided sentiments. First, these documents continue to make the false claim that vape products were created for and marketed to children. Second, both documents also reiterate the U.S. Surgeon General Jerome Powell’s declaration of an epidemic. While it is a shared sentiment among industry, regulators, and public health activists that youth should not vape until legal age, Whitmer’s administration has fallen for the outcry. We might be at “peak vape panic,” according to one New York Times columnist.

Brad Rodu, the prominent tobacco harm reduction researcher at the University of Louisville, has often argued that the youth federal substance abuse surveys used as evidence of an epidemic are entirely flawed.

I reached out to Rodu for comment on this topic; however, he was unable to provide me with original remarks. Instead, he referred me to a piece he wrote on his personal blog, Tobacco Truth. Rodu argues in this post that the youth vaping epidemic that was declared in late 2018 was miscalculated.

“The oft-cited teen vaping epidemic involves not three million youths, but rather 95,000 underage teens who vaped frequently but never used other tobacco products – or 0.6% of the nation’s 14.8 million high school students,” he wrote, citing federal data obtained through the National Youth Tobacco Survey.

Whitmer’s ban and many of the recent controversial actions taken by state and local governments have cited the youth vaping epidemic. Additionally, as is also the case here, the youth epidemic argument is further compounded by the claim that flavored vapes are supposedly attractive to minors.

The flavor ban in Michigan is what I call “goodwill policymaking.” Others may call it “think of the children”-policymaking. You all know what I refer too.

“Think of the children.”

“What about the children?

These types of remarks were originally clichés. However, these lines have become weaponized as rhetorical strategies to force emotion in people, rather than rational thinking.

“Moral panic has become in current media discourse the inevitable outcome of any story involving “youth”,” argues Debra Ferreday in a 2010 edition of the academic Journal for Cultural Research.

For those of us who are not cultural sociologists, an easier definition could be an understanding of “Lovejoy’s law.” Toronto Star journalist Edward Keenan termed “Lovejoy’s law” in 2014 by referring to the lessons taught by animated sitcom The Simpsons from various episodes where socially-conservative pastor wife character Helen Lovejoy often used the phrase: “think of the children.”

“If, during an argument, someone begs you to “please think of the children,” they’re probably either lying, trying to screw you over or hoping to distract you from the worthlessness of their position. Because when we really care about the children, we don’t let people use them to manipulate us into accepting their politics,” Keenan notes.

Essentially, this rhetorical strategy is an emphasis on the rights of children. No matter how irrational an argument may be, the use of children in rhetoric, especially in policymaking and politics, attempts to disarm the opposing side.

“I wonder if Michigan government officials have a plan to assess the effects of their actions, both on youth use of tobacco products and the adult response, especially smokers and vapers turning away from e-cigarette products,” questions Raymond Niaura, the interim chair of the department of epidemiology and a professor of social and behavioral sciences at New York University.

He additionally questions: “What about the potential of this government action to stimulate black market activities? Was this thought through?”

If you apply the law of unintended consequences, we face a philosophical conundrum that drives policy like Whitmer’s flavor ban. For those of you who don’t know, the law of unintended consequences states that for every purposeful action, there are unforeseen consequences. Economic journalist Rob Norton wrote for the nonprofit Library of Economics and Liberty that the law of unintended consequences can easily be presented in the context of government regulation.

The sources of unintended consequences and moral panic

Throughout his analysis, Norton draws upon the five sources of unintended consequences that were identified by sociologist Robert K. Merton in 1936 in his groundbreaking essay, entitled “The Unanticipated Consequences of Purposive Social Action.” Published in the American Sociological Review, Merton argues that unintended consequences can result from a plethora of social experiences and societal implications.


Merton’s Five Sources of Unintended Consequences:

  1. Ignorance, making the anticipation of everything obvious, thus leading to incomplete analyses.
  2. Errors in the analysis of a problem or following institutionally disapproving habits that worked in the past but may not apply to the current situation.
  3. Immediate interests overriding long-term interests.
  4. Basic values which prohibit certain actions even if the long-term results might be unfavorable.
  5. The self-defeating prophecy, or, the fear of some consequence which drives people to find solutions before the problem occurs, meaning there is ultimately no anticipation for an issue.

Norton took these and applied them to the question of the U.S. Food and Drug Administration’s (FDA) pharmaceutical approval process to illustrate examples of derived and “trickled-down” elements of Merton’s five sources of unintended consequences.

“By requiring that drugs be not only safe but efficacious for a particular use, as it has done since 1962, the FDA has slowed down by years the introduction of each drug,” Norton argues. “An unintended consequence is that many people die or suffer who would have been able to live or thrive. This consequence, however, has been so well documented that the regulators and legislators now foresee it but accept it.”

“Moral panic,” a sociological theory termed by world-renowned South African criminologist Stanley Cohen, is a theory that allows us to understand how policymaking can be impacted by the moral outrage of the moment. In a previous piece on the total e-cigarette ban in San Francisco I wrote for Vaping Post, I loosely define the five stages of moral panic and how policy, parental outcry, media reporting, and self-righteous interests can drive aggressive governmental responses.

If you apply “Lovejoy’s law” and the law of unintended consequences to the sociological theory behind moral panic, we can accurately understand policies like Whitmer’s flavor ban from a plethora of new perspectives.

Moving forward in this piece, I will refer to “Lovejoy’s law,” the law of unintended consequences, and the theory of moral panic as the “three elements of emotional policy response.”

***

The legitimacy of Whitmer’s flavor ban

Back to Michigan…

“Governor Whitmer’s ban on flavored vapor products is an egregious abuse of her emergency rulemaking powers,” Jamie Webb wrote to me in an email. Webb is a local vaping activist and the head of the Michigan-based Vapors’​ Association for Rights and Standards.

Naturally, Webb is aghast to see Whitmer order such an aggressive policy against legal flavored e-cigarette products.

“With the stroke of pen, Governor Whitmer has destroyed the hard work and dreams of hundreds of Michigan business owners and their employees, but even more important than that, she has, like an angry parent, snatched what was perhaps millions of peoples’ saving grace and last chance at finding a healthier alternative right out of their hands,” Webb added with justifiable anger.

Webb brings up an interesting point. For all of the rhetoric and “goodwill” from Gov. Whitmer’s ban, the implications could be catastrophic for vapers who rely on smoke-free alternatives and the shop owners who rely on the vapers.

Gregory Conley, the president of the American Vaping Association and, most importantly, an attorney by trade, outlined how Whitmer’s use of executive power, in this case, could be considered a textbook case of governmental overreach.

“Emergency public health powers were created to give governors the power to act fast to stop the most serious kinds of health threats, not to legislate from the executive office,” Conley wrote in an email.

Conley is right to criticize Whitmer’s flavor ban in this context, as well. Michigan is a state that relies on the use of executive emergency public health power. Given that MDHHS filed a Finding of Emergency document with the endorsement of the governor, the ban on flavors could essentially be protected in a judicial setting as prudent policymaking. Despite the impacts on business and access for legal consumers, the public health emergency powers enumerated to the Whitmer administration to justify a flavor ban are built on sentiments that chief executives in government can determine what is best for individuals.

To further understand these powers for the immediate interpretation of a “public health epidemic,” refer to the Model State Emergency Health Powers Act (MSEHPA). The Centers for Disease Control and Prevention (CDC) drafted the MSEPHA as a tool for state legislatures to enumerate the applicable powers to governors and state-level executive branch authorities to implement public health emergency response procedures in cases of legitimate epidemics and bioterrorism. While most states in the United States have laws like these, including Michigan, there are many elements that potentially violate civil liberties.

The American Civil Liberties Union (ACLU) openly opposed MSEHPA legislation because of the potential for unchecked executive power.

“Public health authorities make mistakes, and politicians abuse their powers; there is a history of discriminatory use of the quarantine power against particular groups of people based on race and national origin, for example,” reads an ACLU policy statement opposing many elements of this model legislation. “The lack of checks and balances could have serious consequences for individuals’ freedom, privacy, and equality.”

I certainly do not diminish the importance of emergency public health powers held by the executive branch of government. This is especially the case when it pertains to how a state responds to a communicable outbreak of disease and other potentially disastrous public health crises.

Whitmer, however, virtually acted on a whim. She also acted on the three elements of emotional policy response. By trying to argue that her flavor ban is justifiable policy to protect public health, she could essentially justify this logic on executive public health emergency powers, as described in the Model State Emergency Health Powers Act.

“Flavored e-cigarettes account for nearly three-quarters of all e-cigarettes, so the impact will be widely felt,” observes Jeffrey Miron, the director of economic studies at the libertarian-leaning Cato Institute in Washington D.C. and an economics professor at Harvard University. “This heavy-handed response goes far beyond what is necessary or acceptable.”

The state legislature’s response

One of the key “selling points” for the flavored e-cigarette ban is the fact that it is only for six months. Whitmer, if she chooses to, can renew the ban for another six months. However, she informed the public that she will be calling on the Michigan Legislature to pass legislation that will make her flavor ban the law of the land.

Whitmer utilized her executive public health emergency power to declare a ban on flavored e-cigarette products.

Michigan has a divided government. For those who aren’t from the United States, divided government is a term used to describe a situation when the legislature and the executive branch are split among the competing political parties. For example, both chambers of Michigan’s state legislature are controlled by the Republicans and the executive branch, meaning the office of the governor, is controlled by Gov. Whitmer. As I noted at the beginning of this tome, Whitmer is a Democrat.

Whitmer utilized her executive public health emergency power to declare a ban on flavored e-cigarette products. Members of the Republican caucus in the state House of Representatives have opposed Whitmer’s ban.

“The governor decided to forgo the traditional legislative process and instead make the decision on her own – without holding any committee meetings or public testimony,” argues State Rep. Greg Markkanen, a Republican from the community of Hancock. “People deserve a chance to have their voices heard.”

The entire Republican caucus for the Michigan House of Representatives also issued a statement through Twitter condemning the flavor ban.

“Gov. Whitmer’s unilateral ban on local vaping shops (a “health emergency”) would have more meaning if she weren’t such a big supporter of expanding pot and the Hash Bash,” the tweet says. I most certainly disagree with the Republican’s bashing of Michigan’s newly legalized cannabis industry in this tweet, but, they do highlight the level of hypocrisy in virtually outlawing legal vaping products.

Democrats in the House offered their full support for Gov. Whitmer’s flavor ban.

“Vaping has become a huge problem among young people here in Michigan,” State Rep. Kara Hope, a Democrat from the community of Holt, said. “And although many people may be using the products for their intended purposes, we need to fully appreciate the potential harm this growing health crisis poses to our children. I am proud to stand with Gov. Whitmer in dedication to protecting young people across our state.”

State Rep. Jim Haadsma, a Democrat from the community of Battle Creek, also voiced his support.

“History has shown us that when we fail to take action in the face of mounting public health concerns, the impacts can be felt for decades,” he said. “I will continue working with my colleagues in the Legislature to support Gov. Whitmer’s commitment to protecting the health of all Michiganders by holding corporations responsible for the products they sell.”

According to reports, the Republican-controlled state Senate has also declined to challenge the executive order.

“The governor has the authority to declare a public health emergency, and then to declare rule in response to that emergency and we do not intend to challenge the governor,” Amber McCann, a spokesperson for the Senate Republican caucus, said in a statement to the Detroit Free Press. “The majority leader shares her concerns about the impacts of those products on kids.”

Though the House Republicans have expressed concerns about Whitmer’s executive order, there are very few pathways of recourse that opposing lawmakers can take to challenge the ban. Without the support of the Senate majority, legislation to check Whitmer’s executive power could potentially fail. Additionally, given the Senate Republicans’ opposition to challenging the action, legislation codifying the flavor ban could be met with very little challenge in this chamber of the state legislature.

One of the main points of concern, in this regard, is a focus on the argument that flavors are not viable solutions for smokers switching from smoking. From a policy perspective, this logic is unsound. From a scientific perspective, this logic is life-threatening.

“It is important that the acceptability of nicotine vaping products are not undermined by unnecessary restrictions on the flavors,” argues the world-renowned Marewa Glover, the head researcher at the Centre of Research Excellence: Indigenous Sovereignty & Smoking in Auckland, New Zealand.

***

The potential risk of a black market

To the Upper Peninsula…

If you have read any of my previous work that deals with vape retail regulations, you may have read the sarcastic and brilliant comments from the quirky and lovable Kim Shilling Manor of Moose Jooce Vape Shops in the towns of Lake and Cadillac.

I have no qualms about going black market.

Kim is a strong woman and a pure symbol of that Upper Peninsula work ethic. So, when she heard that Whitmer was banning flavors, she announced her intentions. Simply put, Kim told me that she is willing to go underground and sell the private-labeled flavored nicotine liquids she makes in-house on the black market.

“I have a responsibility to these people,” Kim wrote to me. “I got them to quit, and I will NOT leave them high and dry.” She then, unapologetically, said: “I have no qualms about going black market.”

Kim’s words reflect the potential motivations for shop owners who have invested their lives to DIY mixing and the vaping industry. If shop owners like Kim close, illicit avenues appear to be the only viable means for those who have been denied legal channels of commercialization, distribution, and eventual sales.

Michael D. LaFaive, the senior director of the Morey Fiscal Policy Initiative at the conservative-leaning Mackinac Center for Public Policy in Midland, Michigan, told me that Whitmer’s flavor ban will negatively shift the existing market.

“If this ban remains in place I foresee a couple of market shifts,” LaFaive wrote in an email. “This is not to say that I’m an enthusiast for smoking or vaping. I neither smoke nor vape and wouldn’t encourage anyone to start. But public policies like Prohibition and high taxes have unintended consequences, and many of them are not positive ones.

Whitmer’s ban on flavors is a case of prohibition, in the context that LaFaive provided. By banning legal products like flavored e-liquids, the legal industry is ultimately outlawed until action is taken to lift the prohibition.

Troves of local business owners will additionally face the hard decision of staying open with limited product options or to entirely shutter operations. It is true that most shop owners will not be as bold as Kim and her Moose Jooce army; however, there are already highly developed sales and supply chains that could easily begin dealing in illegal nicotine products. If you recall the three elements of emotional policy response, a shop owner like Kim choosing to go to the black market is a disservice to not only her but the entire local community that relies on her products.

I fully respect Kim and her business. However, let’s consider a theoretical scenario. If Moose Jooce goes underground, Kim’s existing customers might still trust her to deliver quality, non-contaminated nicotine liquids. New customers, however, have no guarantee of that.

Counterfeit Moose Jooce product could also enter into the illicit market. Let’s imagine that a competitor decides to rip off one of Kim’s proprietary liquids, and produces the product with little care and dangerous procedures. This competitor could easily claim that the e-liquid that is being sold is exclusive to Moose Jooce’s underground operations. All the while, this claim is false and illicit consumers are the victims of lies and shoddy mixing.

While it is amusing to imagine my friend Kim as the drug kingpin of Cadillac, Whitmer’s ban is to blame for me conceptualizing many of these scenarios. In the typical “drug war” fashion, Whitmer has presented herself as a “drug warrior” who “thinks of the children” while using public health emergency powers to risk the health and wellbeing of innocent people.

And, again, most local vape shop owners could close down. The risks could potentially outweigh the benefits.

There is also no guarantee that current vape customers will still use e-cigarette products if non-tobacco flavors are missing.

“Prohibiting the sale of non-tobacco e-cigarette flavors endangers public health and will do little to prevent youth vaping,” says Guy Bentley of the Reason Foundation in an email. “Hundreds of small businesses whose sole mission it is to help adult smokers quit will close their doors.”

Michael Siegel, a professor of community health science at Boston University, built on Bentley’s argument.

“I am strongly opposed to the flavor ban,” he said. “I think it is going to have severe negative public health consequences as many ex-smokers are going to switch back to smoking.”

***

A matter of science and consumer preference

Bentley authored a white paper in November of 2018 arguing in favor of the public health applications of flavored e-cigarette products.

“Banning or restricting e-cigarette flavors, when no scientific basis has been established to do so, creates the risk that current e-cigarette users may revert to smoking or that smokers who may have switched to e-cigarettes continue to smoke,” he wrote.

Throughout this report, Bentley cited much of the work produced by Greek cardiologist Konstantinos Farsalinos of the Onassis Cardiac Surgery Center in Athens.

Farsalinos is a leading tobacco harm reduction expert who specializes in many of the public health arguments for flavored e-cigarettes and vapes. I reached out Farsalinos for comment. Sadly, like Rodu, he was unable to provide original remarks. Luckily, he referred me to an official regulatory public comment document that he sent to the FDA.

Farsalinos wrote in the submitted document that thousands of American vapers prefer non-tobacco flavored e-liquids and vape products over traditional tobacco characterized flavors like mint and menthol.

“Non-tobacco flavors, especially fruit and dessert/pastry/bakery flavors, are the most prevalent choices of the adult established, dedicated US e-cigarette users,” Farsalinos wrote, citing a study that he conducted on 70,000 American vapers. In the same document, he indicated that such a study is the largest survey of its kind conducted to date.

Please note, I reported on these findings for Vaping Post when I revealed that Juul Labs has endorsed most aspects of Whitmer’s flavor ban.

Based on the findings that Farsalinos reached, we can draw the conclusion that sweet-flavored vapes are vital for smokers who switch to vaping and want to eliminate any tobacco-flavored characterizations. Psychologically and through customer preference, many vapers prefer sweet flavors over tobacco characterized flavors like menthol. Unfortunately, as noted in prior reporting and at the beginning of this piece, menthol and mint flavors are included in Whitmer’s ban.

“Over 80% of adult vapers prefer fruit, dessert or candy flavors,” argues Charles Gardner, the director for health, science, & technology at the Foundation for a Smoke Free World. Gardner is also a Michigan native.

“The vape market is clearly intended for those customers, not to “lure kids.”  That’s what adults want. Numerous studies have found that non-tobacco flavors are more effective in helping smokers quit by switching to vaping,” he added.

The Vapor Technology Association (VTA) and the Smoke Free Alternatives Trade Association (SFATA), two premier industry trade groups, additionally condemned Whitmer’s ban by accusing her administration of overlooking the empirical evidence that suggests that flavors can help adults switch and stick to vaping products.

“Science demonstrates that flavors play a critical role in helping adult smokers quit deadly cigarettes,” Tony Abboud, VTA’s executive director, said. Mark Anton, SFATA’s executive director, also said that this policy approach will directly and indirectly “encourage former smokers and..kids to seek black market solutions.”


Disclosure: Michael McGrady is a recipient of the 2019 Knowledge-Action-Change (KAC) Tobacco Harm Reduction Scholarship. The scholarship was made possible through a grant provided by the nonprofit Foundation for a Smoke Free World.

This special report is apart of his scholarship’s research portfolio covering the intersections of regulation, nicotine risk communication, human rights, and tobacco harm reduction.

Marewa Glover, the director of the Centre of Research Excellence: Indigenous Sovereignty & Smoking, has also received funding from the foundation. She only commented on the public policy elements of the topic. Charles Gardner commented only on the scientific arguments behind tobacco harm reduction and vaping flavors.

KAC, the Centre, the foundation, Glover, and Gardner had no involvement in the reporting of this story. This piece complies with Vaping Post’s editorial policies. 

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