Things to think about…
How can a government justify criminalizing people for using safer methods to use a legal recreational substance? This question is the centerpiece of all prohibitions against vaping as the global outrage about the behavior grows exponentially.
India, a country of millions of smokers, just banned e-cigarettes nationwide.
“The decision was made keeping in mind the impact that e-cigarettes have on the youth of today,” India’s finance minister, Nirmala Sitharaman, said in a press conference. Sitharaman cites the concerns that the country is seeing epidemic levels of youth vaping, despite the fact that vaping nicotine is considered safer by much of the public health communities in countries like the United Kingdom and New Zealand.
For one, India’s “epidemic” seems to overshadow a real public health crisis. India’s ban follows a structure that is similar to other countries and jurisdictions across the world. Hong Kong banned e-cigarettes while leaving traditional tobacco products available for purchase. Australia outlaws the use of liquid nicotine. Following this trend, India has only banned e-cigarettes and left traditional tobacco products virtually unadulterated.
World Health Organization data indicates that nearly 900,000 Indians die from ailments linked to traditional tobacco product use with very little suggesting that e-cigarettes are harmful to this specific population.
In light of the recent regulatory developments in the United States, public health regulators in New Delhi responded with what seems to be a knee jerk reaction to some.
President Donald Trump, a Republican, announced that he is directing his administration to finalize rules that ban flavored e-cigarette products all over the country. Naturally, this move is not as bold as banning the entire category; however, the parallels are plentiful. Michigan and New York were the first two states to issue emergency rules that declare vaping a public health crisis. In turn, the policy responses were unremorseful actions that ban sales, in some instances, regulate the possession, and virtually purges the market of once legal products, brands, and businesses.
While we have much to dive into in regards to the New York vaping ban, this analysis will continue to build on our in-depth coverage and analysis regarding Michigan’s flavor ban.
The Michigan-India connection
Lansing and New Delhi are on the same wavelength…
Whitmer made headlines when she officially filed the rules governing the flavored e-cigarette ban with the Michigan secretary of state. Vaping Post previously reported that her administration was taking time to determine the rules, meaning that they were to order the final rules some weeks after the initial declaration and outcry.
A legislative hearing held by the state legislature that was intended to voice both sides of the argument, for and against the ban, occurred earlier this month. During the hearing, vaping industry activists and tobacco harm reduction experts testified before a GOP-majority committee condemning Whitmer’s administration for taking knee jerk reactions like in India.
In addition, and rightfully done, public health regulators from the Michigan Department of Health and Human Services (MDHHS), tobacco control activists, and concerned grassroots groups spoke in opposition. The hearing was certainly a heated arena, but, the sentiment from all stakeholders was needed.
Given the fact that Whitmer has acted unilaterally in banning flavored e-cigarette products, vapers and shop owners of all political beliefs felt betrayed and forgotten.
The lawmakers present at the committee, mainly state House Republicans, voiced frustration that Whitmer utilized a broad swath of her power justified under the Michigan Compiled Laws and the state Public Health Code.
In my special reporting on the impacts of Michigan’s ban on public health and the economy, I highlighted that the state laws are structured in a capacity that permits the chief executive of the state government (e.g., the governor) to exercise excessive executive power when the public health justification exists.
Following a line of reasoning that staggeringly recalls the motivations for flavor bans in Michigan and other American jurisdictions, India banned nicotine-containing e-cigarettes entirely.
Here, is where we draw the shared commonalities of the Michigan and India bans. If we exclude the obvious—the vast socio-economic, ethnic, language, and population differences; both bans are out of the same drug control playbook.
Prohibition, at any scale and in any capacity, gives way for more problems. It doesn’t matter if it is India or Michigan: prohibitions will drive enforcement disparities that place at-risk populations in lesser standing through violations of the universal human rights endorsed by the United Nations.
India will ban all products. Violators face imprisonment and monetary fines. Repeat offenders face more severe criminal penalties.
Michigan, while only a ban on the sale, manufacture, and distribution of flavored e-cigarette products, additionally levies criminal penalties that include imprisonment and monetary fines. Under a different yet similar framework, repeat offenders will also face more severe penalties.
“Prohibition automatically makes drug users into ‘criminals,'” argues Randy E. Barnett in a 2009 essay for the Utah Law Review. He adds: “Drug laws attempt to prohibit the use of substances that some people wish to consume. Thus because the legal sale of drugs is prohibited, people who still wish to use drugs are forced to do business with the kind of people who are willing to make and sell drugs in spite of the risk of punishment.”
Keep in mind; both of the bans in question—India, and Michigan—cite concerns related to youth vaping. As highlighted at the beginning of this editorial, India’s finance minister did just that assuming that youth use is rampant enough to declare an epidemic. This rhetoric is similar to the Food and Drug Administration (FDA) and the Centers for Disease Control and Prevention (CDC) declaring an epidemic of youth vaping in the United States.
I honestly can not speak the efficacy of India’s “youth vaping epidemic” concerns. I have yet to determine the prevalence of such a phenomenon in the world’s largest democracy. Nevertheless, we do have population models to cite from the United States.
Experts in tobacco harm reduction and control have called the fears related to youth vaping in the United States entirely misguided. No one wants kids vaping under the legal age; however, we also must consider the common denominator. Vaping is still considered a cleaner method of nicotine delivery, despite the fear mongering and rhetoric from public health regulators.
Leaders in Lansing and New Delhi share the same logic. By banning e-cigarettes, these leaders claim to be protecting against youth uptake. However, prohibitions carry economic, social, and political implications that further compound illegal activities.
Why would you criminalize a method of clean nicotine delivery without banning cigarettes and other traditional products? By discriminating against modified risk products, a government, regardless of where it is located in the world, forces nicotine users to unsafe methods of acquisition of likely contaminated products causing more health issues than the initial crisis. Or, the users go back to smoking cigarettes. India or Michigan. Country or state. You cannot trust an illicit market brought on by government “goodwill” rulemaking.
Dispatches from Michigan…
Michigan still remains a special case for the United States. Whitmer made Michigan, yes Michigan (of all places), the first state to push a prohibition of this scale. This remark is not to diminish the importance of the Wolverine State. However, it is an interesting choice.
Nevertheless, we need to understand why Michigan is key to the coming wave of regulatory change.
The Whitmer administration laid the groundwork for prohibition through emergency public health powers. Public health powers vested in the governor or president of any government are exercised in the best interest of the public to defend against widespread outbreak from communicable disease scenarios. Or, from instances of bioterrorism.
Last I checked, vaping was invented as a means to deliver nicotine in a risk-modified capacity. Must I go through the spiel again? I can also assure you: those of us in the vaping industry are not bioterrorists.
Given this broad exercise of power, Whitmer has the capability to succeed in conducting any necessary policy positions—(sarcasm) in the benefit of public health, of course.
If we think about the rules of the ban, we can clearly see a lack of understanding and overt disrespect for checks and balances.
Carrie Wade, the director of harm reduction policy for the libertarian-leaning R Street Institute co-wrote a commentary piece with Jesse Kelly, the institute’s government affairs manager, for the Detroit News.
Kelly and Wade wrote about the criminal justice implications of the state’s flavor ban.
“The ban also creates a greater opportunity for people—including adolescents—to interact with law enforcement, putting them at increased risk of becoming involved with the criminal justice system,” Kelly and Wade argue. “This is bad for communities.”
Both cite the potential implications of possession, in the case of the flavor ban. Wade was kind enough to share a leaked version of the initial order (PDF) before Whitmer and MDHHS chief medical executive Joneigh Khaldun signed it (PDF) and filed it with the proper authorities.
In fact, this “leaked” version of the order sparked quite the controversy.
The leaked version specifies that a person who is caught in possession of four or more bottles of flavored nicotine product is to be presumed by prosecutors an individual resolved to sell and distribute. Penalties can range from imprisonment up to six months, or more if there is repeat offense, or fines, or both.
“Public health regulators generally have the best intentions when they propose regulations such as this one,” says Chelsea Boyd, a research fellow in harm reduction policy working for Wade at the R Street Institute.
For context, Boyd and Wade co-wrote a commentary piece for Filter condemning the Trump administration for its positioning toward a nationwide flavored e-cigarette ban.
She elaborated that Michigan’s public health laws are built on policy that exists in jurisdictions at all levels of American governance.
“However, sometimes in an effort to protect the health of what they see as the most vulnerable populations, they leave behind other less visible, but still vulnerable, populations,” Boyd added. “Health regulators tend to be striving to get people to make the ideal health choices rather than taking the harm reduction stance by “meeting people where they are at.” When you have that kind of goal and passion, it is sometimes difficult to take a wider view of the potential implications among all populations.”
Based on the “initial” rules, the logic that Boyd mentions is present.
Kelly and Wade wrote that these presumption rules governing the allowed possession limit are “indeed, unduly harsh.”
Interestingly enough, the signed order that was filed with the Michigan secretary of state omits the “presumption” rule governing possession. MDHHS sent me a copy of the final order, and I can confirm this. Frankly, it was public knowledge after the vigilant vaping activists of Michigan raised hell.
“The good news is that I think all the uproar about the super harsh penalty did convince the office to take that out of the final text,” Wade wrote to me optimistically. However, my analysis of the signed version of the rules reveals a concern for presumption still.
I hate being pessimistic; however, the current and active order of the rules governing the flavored e-cigarette ban could still offer tools for prosecutors to charge innocent vapers. For a brief moment, eliminate shop owners and manufacturers. Vapers who use multiple flavors, or who create their own juice for personal use could potentially face a drug trafficking charge, an intent to distribute charge, or a criminal violation of the state public health code.
Whitmer’s ban could do potentially these things. (Remember, this is speculation.) I reached out to the office of Gov. Whitmer and MDHHS for comment about this possibility. Both declined to comment.
Reported from Michigan and Colorado.