Whitmer vape tax plan would ban most flavors as ‘contraband’

• Michigan could ban many vape products under Gov. Gretchen Whitmer’s proposal to tax e-cigarettes in the name of public health
• The plan would ban the sale of non-FDA approved vaping products and calls for seizing and removing them from store shelves
• Ban would include most flavored vapes. Whitmer tried to ban them before in 2019 but courts overturned the emergency order

LANSING — The majority of vaping products in Michigan could be seized as contraband if Gov. Gretchen Whitmer’s effort to tax vaping products similar to cigarettes takes effect as currently proposed.

The plan is meant to “curb usage and protect public health” by extending Michigan’s 32% wholesale tax on tobacco products to e-cigarettes and other nicotine delivery devices, according to a State Budget Office memo.

But a little-discussed provision in the governor’s proposal would also “prohibit the sale of vaping products not authorized by the US Food and Drug Administration,” which industry and health officials say would effectively ban all but 34 tobacco- and menthol-flavored products approved by the FDA.

Most other flavors would be subject to “seizure and forfeiture as contraband products” under the proposal, which would also impose civil and criminal sanctions for their sale, including fines for any “hazardous waste disposal costs incurred by the state,” according to the memo.

Because so few vape products are FDA-authorized, a ban “would destroy hard-working small businesses across the whole state of Michigan,” said Jim McCarthy, spokesperson for the American Vapor Manufacturers Association, which represents manufacturers and retailers across the country.

Whitmer's office declined to comment on the potential ban on flavored vape products, which the governor tried to enact in 2019 as part of a health emergency order to deter youth usage that was later blocked by the courts. 

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Instead, spokesperson Stacey LaRouche directed Bridge to Whitmer's broad comments on her proposed vape tax during last month's State of the State address: “If we don’t act smart on vapes, we risk our children’s health and futures,” Whitmer said at the time. 

While health advocates have largely praised Whitmer’s tax proposal, even some proponents say her decision to pair it with a ban on non FDA-approved products may be a step too far because the state has no real enforcement mechanism.

And House Speaker Matt Hall, R-Richland Township, said the provision will all but ensure the larger tax plan is dead on arrival in the Republican-led House. 

“People like these flavors,” Hall said. “Nobody uses the vapes — and I’m talking about adults — they don’t use the vapes that aren’t flavored. … When you’re banning the flavored vapes and then raising taxes? The public doesn’t want that.”

What’s on the market?

As of January, the FDA has authorized 34 “tobacco- and menthol-flavored e-cigarette products and devices,” from just three companies: NJOY, LLC, RJ Reynolds Vapor Company and Logic Technology Development, LLC. 

Beyond those 34 products, "all other non-FDA authorized items would be subject to seizure and forfeiture as contraband" under Whitmer's proposal, confirmed state health department spokesperson Lynn Sutfin.

The FDA has denied applications for companies to market many other vape products that could appeal to kids, including flavors like "Rainbow Road" and “Jimmy the Juice Man Peachy Strawberry.” 

NJOY is the only brand to make a flavored, FDA-approved product, with four of their menthol-flavored pods getting the green light in June 2024.

By comparison, the US Centers for Disease Control and Prevention estimates that nearly 6,300 different e-cigarette products were available for purchase throughout the country as of that same month. 

It’s not known how many non-FDA approved products are sold in Michigan, but nationally, it’s believed that “more than 86% of e-cigarettes on the market are illegal products,” Sutfin said. 

“These unauthorized products are plentiful on the market,” she added, “which makes them easier for youth access.”

Who wants a ban?

The Whitmer administration first tried to implement a six-month ban on flavored vaping products in 2019 via emergency rules. 

At the time, Chief Medical Executive Joneigh Khaldun called vaping a “public health crisis,” saying vapes “contain harmful chemicals that put our kids’ health at risk.”

The emergency rules would have made Michigan the first state in the country to ban flavored vaping products. But in May 2020, the Michigan Court of Appeals ruled Whitmer’s ban was unenforceable because the state health department had bypassed proper rulemaking procedures.

At least six states — including New Jersey, Utah and California — have subsequently banned or restricted the sale of flavored tobacco products in some form. Louisiana last year began enforcing a ban that only allows vape products that are FDA-approved or meet one of several narrow exceptions.

A legislative plan to ban flavored vaping products in Michigan was debated — but not advanced — in a House committee late last year. 

“The main reason kids and young people are still getting hooked on nicotine is because of the flavors — flavors hook kids,” 19-year-old activist Michael Emanuel Smith said at the time. “The tobacco industry used flavored nicotine to hook kids to a lifetime of tobacco addiction.”

But even some health experts who support Whitmer’s vape tax plan worry her latest attempt to ban flavors goes “too far,” said Dr. Brittany Tayler, a pediatrician/internist and co-chair of the Keep MI Kids Tobacco Free Alliance. 

“There’s really not a great way to enforce that at this point,” she said of the proposal to prohibit the sale of non-FDA-authorized products. 

The state’s first focus should first be on getting a tobacco retail register in place first, she added, noting Michigan is only one of 10 states to not require any form of retail license to sell tobacco according to federal data. 

“It has never been our intention to take all e-cigarettes,” said Tayler. “We’re talking about keeping them out of the hands of kids.”

Fears for the industry

McCarthy, of the American Vapor Manufacturers Association, said he didn’t understand how the state could target flavored vaping products with a ban, when flavored vodkas and beers exist that could be equally as attractive to minors — and are also sought unlawfully. 

“Kids, underage people, buy those all the time at far higher rates than they do nicotine products, but we don’t look at that and outlaw chardonnay,” he said. “It’s absolutely ludicrous, drug war policy prescriptions divorced from reality.”

At the Wild Side Smoke Shop in East Lansing, manager Daniel Carr said he did not think Whitmer’s proposal would put the store out of business because it sells more than just vapes.

But it would probably mean higher prices for consumers, he said at the shop, which is located near Michigan State University and sells a variety of flavored vape cartridges, from "pink lemonade" to "bangin’ sour berries.”

Carr, now 25, said he has vaped himself since he was 18 and has a “sweet tooth.” He uses flavored cartridges such as “sour peach,” “cola slush” and “raspberry cool” but said he might stop vaping if prices increased or flavors were pulled from the market. 

“It’s like the TikTok ban: If you don’t use TikTok, you didn’t really care, but if you were on TikTok everyday, it’s the worst thing that ever happened to you,” he said. “I’m somewhere in the middle.”