Updated November 15, 2019
In the wake of recent alarming reports of vaping-related lung injuries, resulting in at least 42 confirmed deaths in the U.S., the nation’s public health community and government authorities have reacted with concern and a variety of measures.
Given that this crisis coincides with an unprecedented increase in youth e-cigarette use in the United States and a recent declaration by the Surgeon General that youth use of e-cigarettes has become an “epidemic,” states and Tribes are stepping in to protect the health of youth and the broader community against e-cigarettes. A recent report found that a majority of youth who use e-cigarettes prefer flavored products. Some of the many risks of youth e-cigarette use include harm to brain development and increased likelihood of addiction. In recent months, various states and Tribes have taken bold action, primarily against flavored products, to protect youth against the harms of e-cigarettes.
On September 16, 2019, Governor Gavin Newsom issued an executive order to address the youth e-cigarette epidemic in California. Among other directives in the executive order, Governor Newsom ordered the Department of Public Health to initiate a $20 million digital and social media campaign to educate California’s youth and parents about the dangers of vaping as well as to develop recommendations to decrease access of vaping devices to youth.
On September 24, 2019, Massachusetts Governor Charlie Baker declared a public health emergency in response to a suspected link between the use of e-cigarette and marijuana vaping products and severe lung disease in the state. As part of the declaration, Governor Baker called for a ban on the sale of all flavored and non-flavored vaping products and devices, including tobacco and marijuana. In accordance with the public health emergency declaration, the state’s Commissioner of the Department of Public Health issued an order to implement the ban. In the course of litigation against the ban, the state was required to file emergency regulations in place of the order. The regulations were filed on October 28, 2019 and went into effect upon filing. These emergency regulations ban the broadest range of products to date and will last for three months. Most recently, on November 5, 2019, a judge ruled that enforcement of Massachusetts’ vaping ban could not include medical marijuana vaping products unless the state’s Cannabis Control Commission decided to continue that enforcement. In response, the Commission issued a quarantine order which applies to all marijuana vaping products other than medical use marijuana flower vaporizers.
On September 4, 2019, Governor Gretchen Whitmer ordered the Michigan Department of Health and Human Services to issue emergency rules to ban the sale of flavored tobacco vaping products, including menthol, in retail stores and online after her Chief Medical Executive found that youth vaping constitutes a public health emergency. On September 18, 2019, the state’s final emergency rules were filed. The ban was to remain in effect for six months with the potential for an extension of up to six more months. However, the ban is not currently in effect because a judge blocked it in the course of ongoing litigation on October 15, 2019.
On October 15, 2019, Missouri Governor Mike Parson signed an executive order regarding youth vaping in the state. The order directs the Department of Health and Senior Services, the Department of Elementary and Secondary Education, and the Department of Public Safety to collaborate in developing a statewide campaign by November 14, 2019 to educate and prevent youth from using vaping products.
On October 8, 2019, Montana joined the states taking emergency action in response to the youth e-cigarette epidemic and outbreak of vaping-related injuries and deaths. Governor Steve Bullock directed the state’s Department of Public Health and Human Services to use its authority to enact emergency rules to prohibit the sale of flavored e-cigarettes, including flavored nicotine, THC, and CBD vaping products, both in stores and online. On October 22, 2019, the emergency rules were scheduled to go into effect and to last for 120 days. The ban has not gone into effect, however, as it was temporarily blocked by a judge on October 18, 2019.
On September 17, 2019, New York State implemented a ban on flavored e-cigarettes, excluding menthol, after Governor Andrew Cuomo directed the Public Health and Health Planning Council to vote on emergency regulations. Earlier in the week, on September 15, 2019, Governor Cuomo also directed State Police and the Department of Health to collaborate on enforcement efforts to decrease sales of e-cigarettes to youth. On September 26, 2019, Governor Cuomo announced that the flavored e-cigarette ban would be updated to include menthol upon recommendation of the New York State Health Commissioner. Enforcement of the ban would have gone into effect on October 4, 2019 but was put on hold by an appellate court the day prior as part of ongoing litigation.
On October 4, 2019, Oregon Governor Kate Brown issued an executive order to address the vaping-related public health crisis in the state. The order directs the Oregon Health Authority and the Oregon Liquor Control Commission to use their emergency rulemaking authority to adopt rules banning all flavored vaping products, including tobacco and marijuana; the ban will last for 180 days. These agencies are also directed to develop various legislative proposals, as well as to develop plans within 90 days regarding consumer warnings, ingredient disclosure, and testing, among other areas. Additionally, the order creates a Vaping Public Health Workgroup to collect and analyze information and advise the Governor and state agencies regarding the state’s vaping public health crisis.
Oregon Health Authority’s temporary rules, as well as the Oregon Liquor Control Commission's rules, addressing the vaping crisis were filed on October 11, 2019 with an effective date of October 15, 2019. However, the Oregon Court of Appeals granted a temporary stay on October 17, 2019 to block enforcement of Oregon Health Authority's rules as related to flavored nicotine vaping products.
On September 25, 2019, Rhode Island Governor Gina Raimondo issued an executive order to combat youth e-cigarette use in the state. The order directs state agencies to implement a variety of measures, including instructing the state’s Department of Health to create emergency regulations banning the sale of flavored e-cigarettes. The emergency health regulations were promulgated on October 4, 2019 and ban the sale of flavored vaping products, including menthol; there are exemptions in the regulations for compassion centers and licensed cultivators. The emergency regulations will be in effect for 120 days, with the possibility of an extension for 60 days.
On October 2, 2019, Utah’s Department of Health filed an emergency rule in response to vaping-related lung injury cases in the state. By October 7, 2019, general tobacco retailers and retail tobacco specialty businesses were to display a mandatory warning sign regarding unregulated THC vaping substances in order to sell e-cigarette products. Additionally, by the same date, general tobacco retailers were to stop selling flavored vaping products, including menthol, although issuance of citations would be delayed until October 21, 2019. On October 28, 2019, a judge issued a temporary order blocking future enforcement of the rule prohibiting the sale of flavored vapor products. However, the rule mandating display of a warning sign remained in effect. On November 7, 2019, the Utah Department of Health agreed not to move forward with the emergency flavored vapor product ban.
On September 27, 2019, Washington became the fifth state to move towards banning certain vaping products. Washington Governor Jay Inslee issued an executive order directing the state’s Board of Health to ban all flavored vaping products, including flavored THC vapor products, through emergency rulemaking at its October 9 meeting. The order also instructs the state’s Department of Health and Liquor and Cannabis Board to take action related to consumer warnings and ingredient disclosure. The emergency rules were filed and went into effect on October 10, 2019.
Options for Other States Contemplating Temporary or Emergency Action
Apart from state legislative activity, state options to combat the youth e-cigarette epidemic and vaping-related lung injury outbreak depend on available authority under state law. Potential sources of authority to take state action against vaping products include:
- Gubernatorial authority in times of disaster or emergency
- State agency authority to use emergency rulemaking
- Injunctive relief
Summary of Current Litigation Challenges to State Action
At least one lawsuit has been filed in each state that has taken steps to enact an emergency ban on certain vaping products. These lawsuits challenge the bans by asserting various claims, including violations of the commerce clause, contract clause and First Amendment, as well as regulatory taking, federal preemption, ultra vires action, and improper emergency rulemaking procedure. Courts have so far granted temporary restraining orders or preliminary injunctions in New York, Michigan, Montana, Oregon and Utah to at least temporarily block enforcement of emergency bans in those states. The vaping product bans in Massachusetts, Rhode Island, and Washington are still currently in effect, although they face pending legal challenges.
Oglala Sioux Tribe
On September 24, 2019, the Oglala Sioux Tribal Council passed an ordinance to ban all electronic smoking devices on the Pine Ridge Reservation. The ban takes effect immediately but prosecution for violations will be delayed for 30 days after enactment. Unlike the temporary state action taken recently in response to the outbreak of vaping-related lung injuries and increase in youth e-cigarette use, the ban enacted by the Oglala Sioux Tribe is permanent.
On October 11, 2019, the Puyallup Tribal Council instituted a ban on the sale of flavored vaping products, including both tobacco and marijuana, that will last for 100 days. The ban went into effect for flavored marijuana vaping products on October 11, 2019 and for flavored tobacco vaping products on November 1, 2019.
On November 5, 2019, the Muckleshoot Tribal Council banned the sale of flavored vaping products. Additionally, it decided to restrict sales of tobacco products, including vaping products, to anyone under the age of 21.
On September 11, 2019, the White House announced that the federal government also plans to act to ban flavored e-cigarettes, including menthol-flavored products. Specifically, the U.S. Food and Drug Administration will develop guidelines to remove all e-cigarette flavors, aside from tobacco flavor, from the market. While it was originally reported that the flavor restrictions would take several weeks to develop, there have been no substantive updates on the restrictions since September 11, 2019.
Some companies have also taken action to pull vaping products off their shelves in light of the recent vaping health crisis. Kroger, Walgreens, and Walmart, for instance, recently decided to discontinue the sale of e-cigarettes, while Rite Aid stopped selling e-cigarettes in April 2019.
Although a ban on flavored e-cigarettes is a step in the right direction to protect the health of youth, there can be unintended consequences unless other flavored tobacco products are also prohibited. For instance, any flavored e-cigarette ban that does not include menthol increases the risk that youth users will simply switch from banned e-cigarette flavors to menthol, if not already using a mint or menthol flavor as many youth do. Also, a ban on flavored e-cigarettes, even including menthol, could push nicotine-addicted youth to transition to menthol-flavored combustible cigarettes or flavored cigarillos or cigars, which are legally sold in most communities.
Finally, temporary state action to address the harms of youth e-cigarette use is not a substitute for bold, comprehensive, and permanent local and state policy. And as the above litigation summary highlights, temporary or emergency state action to address the vaping health crisis has been universally challenged and complicated by litigation.
The Public Health Law Center is available to provide free legal technical assistance to explore and analyze both potential short- and long-term solutions to the youth e-cigarette epidemic to interested communities throughout the United States.
Updated November 15, 2019