A flavor ban is being considered in Michigan – again after a months-long judicial battle in which the Michigan Court of Appeals ultimately ruled in favor of an injunction against Gov. Gretchen Whitmer’s September 4, 2019 emergency rules that banned flavored vapor products.

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This time, Gov. Whitmer is using the Michigan Department of Health and Human Services (MDHHS) to issue a rule that would ban sales of “flavored nicotine vapor products” in the Great Lakes State. MDHHS held a virtual hearing on October 20, and public comments were due on October 23.

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Like September 2019’s emergency rule, the ban has virtually no legislative oversight. Should it proceed from MDHHS, it will then be sent to the Michigan Joint Committee on Administrative Rules, which “is in charge of overseeing the administrative rulemaking process for each department” – including MDHHS. JCAR consists of 10 lawmakers, including 5 senators and 5 representatives.

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As required, MDHHS submitted a regulatory impact statement. The agency is proposing the rule to “reduce the appeal of vaping flavored nicotine products in order to prevent the abuse of tobacco and nicotine products at a young age.”

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Interestingly, the agency does not expect any costs brought by the proposed rule, but does note a University of Michigan analysis which found that “nearly 3.3 million life-years could be saved by the year 2070.” MDHSS reports that the analysis “accounts for e-cigarettes’ possible role in both smoking cessation and initiation.”

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Although ensuring youth do not use age restricted products is a laudable goal, banning the sale of flavored vapor products eliminates an effective tobacco harm reduction tool used by thousands of Michigan adults to remain smoke-free. Further, there is no evidence that flavor bans reduce youth usage or that electronic cigarettes or that e-cigarette use increase the likelihood of combustible cigarette use.

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In its regulatory statement, MDHHS notes that “[r]educing vaping product usage among youth will reduce nicotine addiction among youth … leading to lower rates of combustible cigarette use.” According to Michigan Youth Risk Behavior Surveillance Surveys (YRBSS), a decrease in youth vaping actually lead to an increase in youth smoking.

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For example, in 2015, 10 percent of Michigan high school students reported current combustible cigarette use and 23 percent reported current e-cigarette use. In 2017, combustible cigarette use increased to 10.5 percent of high school students (a 4.8 percent increase), while youth vaping use decreased by 55.4 percent, to 14.8 percent of Michigan high school students. According to the 2019 YRBSS, current use of combustible cigarette products is at an all-time low, at 4.5 percent of high school students. This is a 133.3 percent decrease from 2017 rates and a 122.2 percent decrease from 2015 rates. Regarding current e-cigarette use, in 2019, 20.8 percent of high school students reported using a vapor product, a 28.8 percent increase from 2017, but a 10.6 percent decrease from 2015 vaping rates.

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Other localities have banned the sale of flavored vapor products and have seen an increase in youth combustible cigarette use. For example, in April 2018, a ban on flavored e-cigarettes and vapor products went into effect in San Francisco. According to the 2019 YRBSS, vaping increased from 7.1 percent of high school students to 16 percent of high school students reporting using an e-cigarette. Further, current cigarette use increased from 4.7 percent of San Francisco high school students in 2017 to 6.5 percent in 2019.

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E-cigarettes and vapor products are not only effective cessation products, they have been an economic boon to the Great Lakes State. For example, in 2018, the industry created 2,660 direct vaping-related jobs, including manufacturing, retail, and wholesale jobs in Michigan, which generated $75 million in wages alone. Moreover, the industry has created hundreds of secondary jobs in the Great Lakes State, bringing the total economic impact in 2018 to $608,284,800. In the same year, Michigan received more than $38 million in state taxes attributable to the vaping industry. These figures do not include sales in convenience stores, which sell vapor products including disposables and prefilled cartridges. In 2016, sales of these products in Michigan eclipsed $16.3 million.

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Further, MDHHS notes that the Centers for Disease Control and Prevention “has found that each dollar spent on tobacco prevention can eliminate up to $55 of tobacco-related health care expenditures,” yet Michigan spends a dismal amount on funding tobacco control programs.

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For example, in 2019, Michigan received an estimated $1.2155 billion in tobacco taxes and tobacco settlement payments. In the same year, the state spent only $1.6 million, or less than 1 percent, on funding tobacco control programs, including education and prevention.

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It is outright shameful that lawmakers would ban tobacco harm reduction products that have helped thousands of Michigan adults quit smoking. Rather than banning flavors, lawmakers ought to use existing tobacco monies on programs that can reduce youth use.

Nothing in this analysis is intended to influence the passage of legislation, and it does not necessarily represent the views of Tobacco Harm Reduction 101. For more information on tobacco and vapor products in the Great Lakes State, please visit Tobacco Harm Reduction 101’s Michigan page at https://www.thr101.org/michigan.