Montana Proposes to Outlaw Sale of Flavored Vaping Products

Advocates claim ban will cost jobs, drive ex-smokers back to cigarettes; DPHHS says ban intended to keep children from vaping

By Andy Viano
Matt Culley, a local vaping advocate who has made a career of producing vaping-related online content, demonstrates a vaping device in Kalispell on Oct. 11, 2019. Hunter D'Antuono | Flathead Beacon

The Montana Department of Public Health and Human Services is seeking to ban the sale, promotion and advertisement of flavored e-cigarettes and other vaping products, the agency announced on June 16, drawing renewed cries from opponents of a recently expired temporary ban who claim vaping is an effective harm-reduction tool for those looking to kick a cigarette habit.

The proposed ban will be discussed at a public hearing on Thursday, July 16 at 3 p.m. via Zoom teleconference, and a public comment period is open through July 24. The earliest the rule could take effect is Aug. 8. If adopted, Montana would become the fifth state to limit the sale of flavored vaping products, joining Massachusetts, New York, New Jersey and Rhode Island.

The DPHHS action aims to stop a growing number of young people from using e-cigarettes, a practice commonly called vaping. Teenagers have been vaping at a fast-growing rate in recent years, despite sales of vaping products restricted to age 18 and older. More than 58 percent of high school students had tried e-cigarettes according to a 2019 survey, and 12.7 percent reported vaping at least 20 times in a 30-day period, a more than 200 percent increase from 2017.

Most e-cigarettes contain nicotine, the addictive chemical in traditional cigarettes, and proponents of the ban say flavored vapes specifically target children, attracting youngsters who would not have otherwise smoked cigarettes. In a press release announcing the proposed action, DPHHS called flavored e-cigarette use among young people an “epidemic” and singled out “youth-appealing flavors” like candy, mint, fruit and menthol. The Food and Drug Administration banned all flavored cigarettes except menthol in 2009.

Montana’s proposal to ban flavored vapes follows a string of recent actions around the country aimed at curbing the product’s use. The issue came to the forefront last year, when an ailment known as EVALI (E-Cigarette or Vaping Associated Lung Injury) sickened a small percentage of vapers nationwide. EVALI cases peaked in September 2019 and the Centers for Disease Control and Prevention later concluded most illnesses were caused by vapes acquired from “informal sources” and containing THC, the hallucinogenic compound in marijuana. Montana’s proposed ban would not impact flavored vaping fluids derived from THC, which are available to those with medical marijuana cards, but would instead outlaw flavored tobacco-based fluid.

In October 2019, DPHHS enacted a temporary ban on flavored vapes, which went into effect in December following a court battle and expired on April 15. At the time it was announced, the temporary ban drew the ire of local vapers, vape-shop owners and industry groups, with the American Vaping Assocation calling the ban “senseless” and “a rash and unfounded move.”

Advocates for vaping laud the practice mostly as a smoking cessation tool. Ex-smokers believe vapes are healthier than cigarettes, and vapers can use different vaping liquids to taper the amount of nicotine they ingest as they work to break their addiction. Ex-smokers also say the flavored liquids are an essential part of their experience since the flavor helps them disassociate from the taste of cigarettes. The vast majority of e-cigarette users say they prefer flavored vapes.

Matt Culley, a Kalispell vaper, content creator and board member of the Consumer Advocates for Smoke-Free Alternatives Association (CASAA), blasted Tuesday’s proposed action by DPHHS and warned outlawing the practice could drive vapers to the black market, to international online sellers or back to cigarettes.

“My thoughts are that it’s insane,” Culley said.

“History shows that the all-or-nothing mentality does not work for everybody,” he continued. “(Vaping is) harm reduction. It’s accepted.”

Culley himself is an ex-smoker who was diagnosed with oral cancer at just 30 years old. He and other vapers acknowledge that there are health risks associated with vaping, but say it’s a safer alternative to an even more dangerous cigarette habit. Health experts in the United States either reject that claim or take no stance, but places like the United Kingdom have designated e-cigarettes as a healthy alternative and effective harm-reduction tool.

Beyond disputing the proposed rule itself, Culley also expressed concern for local businesses already suffering from the temporary ban and a loss of business related to COVID-19.

“This would kill shops. There are no vape shops that can survive not selling flavored products,” he said. “People will go back to smoking. In the year 2020, when we’ve already learned our lesson on prohibition of things like this, it’s asinine to think this is the smart route.”

But DPHHS has not been moved by any of those arguments, and the federal government has also taken recent steps to regulate flavored e-liquid. In January, the Food and Drug Administration prioritized enforcing its laws outlawing cartridge-based e-liquid in flavors other than tobacco and menthol, and any e-cigarette products “targeted to minors.” Federal laws do not, however, restrict the sale of self-contained flavored vaping liquid that can be used in a vaping device, something that would be banned under the Montana proposal.

To participate in the July 16 public hearing on Zoom, a meeting link is available within the proposed rule change at https://dphhs.mt.gov/Portals/85/rules/37-923pro.pdf. Public comments can be submitted through July 24 to Heidi Clark, DPHHS Office of Legal Affairs, P.O. Box 4210, Helena, MT 59604.

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