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Hearing Set For New Vaping Rules To Ban Flavors
A hearing on new administrative rules regulating the sale and promotion of flavored nicotine vapor products has been rescheduled for late October.
The hearing on MOAHR 2019-107 Track, previously set for September 23 but later canceled, is now slated for 9 a.m., Tuesday, October 20, and will be virtual. The deadline to submit public comment is 5 p.m. October 23 which can be submitted by through traditional mail, email or during the meeting.
The draft rules would prohibit the sale or distribution of flavored nicotine vapor products – including menthol flavors but excluding tobacco flavors – to anyone in the state and the use of imagery representing a flavor to sell the product.
The proposed rules are clear that they do not prohibit a person from merely possessing flavored vapor products, nor would they prevent a Michigan-based retailer, wholesaler, manufacturer or other distributor from transporting flavored vapor products within the state or outside of it. However, possession with intent to sell would be considered a violation.
"By prohibiting the retail sale of flavored products, less product is available on the market, and the products that are available are substantially less appealing to youth," the Department of Health and Human Services wrote in request for rules form late last year. "This is anticipated to decrease youth use of vapor products. Reducing exposure to advertising related to vapor products can help to reduce youth initiation and continued use of vapor products. By restricting the advertising of these products, Michigan will curb youth exposure to vapor product advertisements specifically designed to pull them into nicotine addiction at an early age."
Further, the proposed rules would also disallow sellers and manufacturers from advertising products using words like "clean," "safe," "harmless" and "healthy" regarding the vapor products and devices, labeling them as misleading or fraudulent terms.
Rules on false statements would not apply to product advertising already and exclusively regulated by the federal Food and Drug Administration, which also passed its own new set of vapor product rules earlier this year.
Any advertisement of a flavored vapor product cannot be placed with 25 feet of a point of sale location nor can they be placed within 25 feet from candy, food items or soft drinks in places like convenience stores, gas stations or smoke shops. Overall, such advertisements cannot be readily seen standing outside of the building at a distance of 25 feet.
The penalty for violations of any of the proposed provisions would be guilty of a misdemeanor with a fine of $100 for a first offense, $200 for a second offense and then a fine of no more than $200 or imprisonment for no more than six months, or both, for a third offense.
The federal agency prioritized enforcement of flavored, cartridge-based and noncombustible vapor tobacco products, much like Michigan wants to, except the federal rules allow for the sale of menthol flavors along with the possibly less attractive tobacco flavor. A section explaining the decision to include mint as one of its allowable flavors said that public comment extolled mint and menthol flavors as helpful with smoking cessation.
The federal rules also aim to hold manufacturers accountable if they fail to take adequate steps to prevent youth marketing or access, similar to Michigan's proposed rules.
Michigan's proposed regulations, unlike the January 2020 federal rules, do not detail other ways to hold manufacturers or sellers accountable and the various steps they can take to maintain compliance. For comparison, the final federal rules go into great detail about those steps.
The hearing on said rules comes close to a year after they were promulgated last fall. While that was happening, Governor Gretchen Whitmer also acted to push through regulations on flavored vapor products using the emergency rules process because it was a swifter way to tackle the ban than the typically laborious and lengthy administrative rules process – which requires hearings and public comment before the rules can be transmitted to an appropriate legislative committee for approval.