Whitmer’s ban of flavored vape products could lead to jail time, cause students to turn to cigarettes

Wednesday, September 18, 2019 - 8:05pm

Michigan Gov. Gretchen Whitmer announced a ban that will stop the sale of flavored e-cigarettes and other nicotine vaping products.

Michigan Gov. Gretchen Whitmer announced a ban that will stop the sale of flavored e-cigarettes and other nicotine vaping products. Buy this photo
Alec Cohen/Daily

On Sept. 4, Michigan Gov. Gretchen Whitmer announced a ban that will stop the sale of flavored e-cigarettes and other nicotine vaping products. The ban also prohibits marketing vaping as “clean,” “safe” or “healthy.” 

In order to speed up the process of creating the ban, Whitmer ordered the Michigan Department of Health and Human Services to draft emergency rules banning the products. This allows state agencies to create policies that will act as laws after being authorized, according to the Lansing State Journal. On Wednesday, Whitmer released the emergency rules for the ban, effective immediately. Retailers and resellers have two weeks to comply.

 Rule 2 of the ban states someone found with at least four of the banned products will be assumed to have intent to sell them, which is prohibited under the ban. 

“A person who possesses four or more flavored vapor products, or flavored alternative nicotine products is rebuttably presumed to possess said items with the intent to sell,” the rule reads. 

Rule 6 also states a person who violates rule two will be charged with a misdemeanor and could face up to six months in prison and/or a fine of up to $200 per item.

“A person who violates any provision of these rules is guilty of a misdemeanor, punishable by imprisonment for not more than six months, or a fine of not more than $200, or both,” the rule reads. “Violations of rule 2 are calculated on a per-item and per-transaction basis and may be punished cumulatively.”

Police officers are not legally allowed to randomly stop and check for contraband, Law professor Gabriel Mendlow wrote in an email to The Daily. However, he said if they can tell someone is smoking a flavored vape, they are allowed to take it and arrest them. 

“If a police officer can tell somehow that the product you're vaping is flavored – by smelling it, for example – then the Constitution allows the police officer to seize the product and, in theory, arrest you, if she has a reason to believe you're a reseller,” Mendlow said. “But if the only thing a police officer knows is that you're vaping, then she isn’t allowed to force you to let her check whether the product you’re vaping is flavored.”

Mendlow added if someone does wind up in court, the “intent to sell” clause could be rebutted if there is a good explanation for why someone was in possession of the prohibited items, but the prosecutor could argue against this. 

“The prosecutor could argue that you possessed more flavored products than someone would possess who intended to use the products personally rather than sell them,” Mendlow said. “Under the emergency rules, there's a rebuttable presumption that anyone who possesses four or more flavored products intends to sell them. This means that if you possess four or more flavored products and you don't offer an innocent explanation, you may be convicted on these facts alone.”

Many University of Michigan students expressed concern regarding how the AAPD would implement the ban and explained vaping has become a common social activity on campus. Due to the soon-to-be illegal nature of the topic, the three students interviewed requested anonymity. They will be referred to as Student 1, Student 2 and Student 3.  

Student 1 said she used to vape a lot, but she felt some negative health effects from it and was spending a lot of money, so now she mostly uses other people’s products when she wants to vape. She noted how important vaping is to the social environment at parties and on college campuses. 

“I used to vape — I don’t think I was ever as bad as a lot of people were, I wasn’t upset if I didn’t have mine, but if it was there I’d want to hit it,” Student 1 said. “So, I definitely get the addiction, I definitely know a lot of people who were addicted … at this point, unless I’m drunk or at a party or something, I’ve made it just a social thing. I think in those situations, when you’re around it, it’s really hard to not want to do it.”

Student 2 said he considers himself to be addicted. He started vaping in high school before he understood the consequences, and now he said he is having a hard time stopping. 

“(I’ve) been doing it for about 3 years now,” Student 2 said. “My friend gave a vape to me to try in high school. I tried it, and I didn’t understand what addiction was before, and now I understand it. I am definitely addicted. I’ve tried to stop multiple times.”

Cozine Welch, an instructor at U-M, said he vapes and enjoys the different flavor options. 

“I do own a vape,” Welch said. “Here’s the other thing that gets me about it, right. It’s always this claim that it has to be targeted towards children. I’m not saying that it isn’t, all right, but what I am saying is there’s this assumption that if you’re an adult, you just like nasty stuff. If you’re grown, you don’t want anything that tastes good, you want tobacco. Well, I like mango better than tobacco.”

Student 3 doesn’t think the ban is going to work. He discussed how nicotine is addictive and it’s not easy to quit – even if people want to. 

“This is not going to work at all,” Student 3 said. “For some people, they’re just going to stop. So maybe it’ll work for people who don’t do it much, but for people who do it a lot, I’ve already seen my friends starting to smoke cigarettes. So, not everyone can just quit cold turkey, people want a nicotine buzz.”

Student 1 said she knows people who are planning on stocking up on Juul pods before the ban or are considering driving to other states to get them.

“I’ve heard of some people planning to drive to other states to get them, and we’re not that far,” Student 1 said. “But I’ve also heard of other people already finding alternatives, even though they’re not even banned yet, so that’s concerning … just things like chew. I don’t know anyone that’s gone to cigs yet, but people have talked about it.”

Student 2 echoed Student 1 and agreed people are turning to alternatives. He said the next best option for him is cigarettes. Student 2 said his friends have recently quit vaping after hearing the news of people dying from it. 

“Some of my friends all live in the same house together and they all had vapes, and they all went cold turkey at the same time a week ago,” Student 2 said. “And they’ve already bought four packs of cigarettes. It’s really bad.”

As a possible alternative to Whitmer’s ban, Student 3 suggested lowering the nicotine levels in vapes in order to make it easier for people to transition off of them. 

“I hit it for the first time, and because it’s so strong, it felt amazing,” Student 3 said. “A better solution is to ban products above 2 percent nicotine or something like that. Seriously, in other countries they have Juuls and they’re not allowed to go above 1.8 percent. 5 percent is so much higher than even cigs, so that’s why I think so many people are getting addicted.”

Welch said he does not think the ban is a good solution to the problem. He claimed this ban is punishing people but not acknowledging the root of the problem. 

“I think it’s more of a mindset of trying to rid our community of problems with the same approach,” Welch said. “You know, punish everyone, make it so everyone has to face some extreme consequences and then they’ll stop doing it instead of taking into consideration the things that lead to behavior, that cause the behavior. You just want to assume punishment is going to clear everything out.”

Welch compared the ban to previous laws surrounding marijuana and mass incarceration. He said simply seeking to punish people is not the answer.

“History has shown us that punishment for crime has never been a real good deterrent,” Welch said. “It’s never been a consistent deterrent. It’s never deterred in the way we had hoped. Oftentimes, it doesn’t deter at all. If I’m poor, and my stomach is rumbling, I’m just going to find a way not to get caught to eat, I’m not going to say, ‘You know what, I guess I’m just not going to eat today.’ And, you know, it’s so funny because smoking is addictive, nicotine is an addictive chemical, so you’re treating addicts like criminals.”

Student 1 said while she thinks Whitmer’s ban is the right idea and is important, she’s not sure it will achieve its intended goal and keep kids safe.

“I think the only thing, it might stop a few kids from starting,” Student 1 said. “So maybe a couple years ago it would have been good, but I think at the point we’re at, there are already middle schoolers and high schoolers doing this stuff, so I think at this point, anyone who’s already started, it’s just putting them in more danger.”

Speaking from experience as a formerly incarcerated individual, Welch said if college students get caught with four or more flavored nicotine products and are arrested, it could change their lives.

“It will cause their lives to go in a completely different trajectory,” Welch said. “I’m not saying it’s not possible for them to get back on course, but it’s increasingly difficult. Once you’re branded and tagged with that, so many things change. That collegiate life you lived before, all the hopes and dreams you had, are probably not going to be fulfilled.”

Ultimately, Whitmer said in a press release she ordered the ban to keep minors safe and prevent them from using vape products. 

“Right now, companies selling vaping products are using candy flavors to hook children on nicotine and misleading claims to promote the belief that these products are safe,” Whitmer said in the release. “That ends today. Our kids deserve leaders who are going to fight to protect them. These bold steps will finally put an end to these irresponsible and deceptive practices and protect Michiganders’ public health.”