Amid growing concern over an outbreak of vaping-related lung illnesses and deaths, and the lack of federal regulation from the U.S. government, many states have turned to enacting their own regulations to challenge the vaping industry. Many of these regulations were set in place to curb youth vaping. For many of these states, these regulations were set in place to fill a void caused by federal inaction.
That being said, in 2016 the Food and Drug Administration (FDA) has gained regulatory power over e-cigarettes and is now requiring all American e-cigarette brands to apply for the “appropriate” authorization. Existing and new brands will have until May 2020 to apply for this authorization or risk being removed from the U.S. market.
With full federal regulations still somewhat distant, some states are continuing on with their own regulations, with some states — including Illinois, New Jersey, and Delaware — considering similar regulations. In this article, we’ve outlined some of the states that have enacted vaping bans, and the ones that have been blocked in court.
On September 2019, Michigan became the first state to enact any sort of e-cigarette regulation with the intent of limiting the sale of vaping products. These regulations came into effect shortly after Gov. Gretchen Whitmer states she would issue an emergency ban on the online and retail sale of nicotine vaping products in any flavour other than tobacco. Whitmer also noted that she would work to restrict the marketing of vaping products by prohibiting the use of terms like “clean,” “safe,” and “healthy.”
Michigan’s emergency vape ban was introduced September 18 and was meant to last 180 days. Retailers were given two weeks to comply with the policies, but on Oct 15, a Michigan Court of Claims judge sided with retailers in a lawsuit. The lawsuit was directly aimed at Whitmer and claimed she overstepped her authority by enacting the ban.
On September 17, 2019, New York became the first state to implement a statewide ban on flavoured e-liquid and nicotine-containing vape products. This ban came just days after Gov. Andrew Cuomo called for emergency action, which drew derision from public health advocates. The ban on flavoured e-liquid in New York does not currently apply to menthol flavours, as public health officials believe that banning these flavours could push people back towards menthol-flavoured tobacco products. That being said, according to Gov. Cuomo’s office, the state’s health commissioner is evaluating an additional ban on menthol flavours.
While the ban was set to take effect on Oct 4, an appellate court placed a hold on the ban. This has allowed retailers to continue selling their products, and the State Supreme Court will now have to decide whether to grant the Vapor Technology Association a preliminary injunction on the ban.
On September 24, 2019. Gov. Charlie Baker declared a public health emergency, brought on by the more than 500 vaping-related illnesses and seven deaths reported to the U.S. CDC (Centers for Disease Control and Prevention) which included five illnesses in Massachusetts. The statewide ban enacted in Massachusetts is perhaps the most strict and effects both e-cigarettes and cannabis. The ban put forth by the state would place a four month statewide ban on the online and retail sale of all cannabis and “tobacco” vaping products, flavoured or otherwise. According to a release from Gov. Baker, Massachusetts lawmakers opted to ban both nicotine and cannabis products due to their uncertainty over is causing the lung illnesses across the country. It should be noted that the CDC has identified vitamin-e acetate as one of the primary causes of these illnesses and the use of this substance is more closely linked with THC containing vape products.
While opponents of the ban have submitted an injunction to the state court, a judge upheld the ban. While the judge did admit the ban was written in a likely unlawful way, halting it immediately would “contravene the public interest.” The judge did give the state until October 28, 2019, to rewrite the ban and to hold a public hearing, as required by state law, so affected establishments could weigh in and provide how they would be fiscally impacted.
On September 25, 2019, the day after Massachusetts announced its ban, Rhode Island followed suit thanks to an executive order signed by Gov. Gina Raimondo. This executive order directed the state’s Department of Public Health to ban the sale of flavoured e-cigarette products in Rhode Island. Raimondo did not mention whether the ban would apply to menthol flavours, but it did note that the ban would not extend to unflavoured tobacco products. The ban was set to last for 120 days, with the state being given the power to extend it to another 60 days.
Upon signing the order, Raimondo called vaping a “public health crisis” for children. She also stated that she would be convening a group of medical experts to advise her on the best way to control and contain the problem.
Despite the vaping industry submitting a request for a temporary restraining order against this ban, Supreme Court Judge Brian Stern denied the request. According to Stern, the state health department was within its legal powers to rule that vaping products are “imminent peril” to the public.
Established on October 9, 2019, Washington State health officials passed an emergency rule banning the sale of flavoured vaping products across the state. The rule was set to last for 120 days and went into effect following an executive order from Gov. Jay Inslee, who called on the state’s Board of Health to ban all flavoured vaping products, including those that contain THC. This decision was met with fierce opposition from e-cigarette users and the e-cigarette industry, both of who claim that this ban will endanger the lives of vapers who have successfully quit smoking.
Established by Oregon health officials on October 11, 2019, a new set of rules established in the state would forbid the sale of nicotine and cannabis vaping products for six months. This ban would also target “repeat-offending” retailer with fines up to $500 per violation, per day. As with some other states, Oregon’s policy was blocked by an appeals court judge, who halted the ban on nicotine products. The judge did not halt the ban on cannabis products.
While California has not enacted any statewide ban on vaping products, Gov. Gavin Newsom issued an executive order (September 16, 2019) focused on curtailing California’s youth vaping epidemic. Among other various actions, the order also allocates at least $20 million for a “vaping awareness campaign,” and calls on state agencies to develop recommendations for limiting the sales of vaping products to anyone under the age of 21. The order would also seek to curb the sale of illegal and counterfeit vaping products across the board. Finally, this executive order would also request that the California Department of Public Health develop a set of standards requiring e-cigarette retailers to post warning signs about the health risks of vaping. Newsom has also stated that he would like to ban flavoured e-cigarettes, but cannot do so through executive action alone.
It should be noted that San Francisco — where JUUL is headquartered — became the first U.S. city to ban the sale of all nicotine-containing e-cigarette products. A JUUL backed coalition has tried to oppose the ban, but in November the city decided to uphold the ban in the city. The Los Angeles County Board of Supervisors is also moving toward a similar ban on flavoured nicotine-containing products.