September 18, 2019
The Honorable Governor Whitmer
George W. Romney Building
111 S Capitol Ave
Lansing, MI 48933
The Honorable Governor Whitmer,
As chairman of the House Oversight Committee, I urge you to consider and accommodate the concerns of stakeholders and the public when your administration proposes permanent rules to address the public health emergency recently declared by Chief Medical Executive Joneigh Khaldun. Although the emergency rules have already been filed, there is still an opportunity to address in the final rule set the myriad of issues that have been raised.
Last week, the House Oversight Committee held an open, public hearing to solicit input on your proposed emergency rules. The committee heard over four hours of testimony from dozens of advocates and opponents of the proposed vaping ban, including testimony from Dr. Khaldun. Based on that testimony, I offer you the following suggestions and concerns I hope will be addressed in the final set of rules:
- The prohibition on a person transporting a flavored product intended for delivery to a retailer is ambiguous because it is not clear whether a transporter who is unaware of the exact nature of the product being transported would be in violation of the law. The prohibition should be limited to those who “knowingly” transport the unlawful product, or through the use of a clearer specific intent requirement.
- The advertisement and marketing regulations apply not only to flavored products, but all vaping and alternative nicotine products. This goes far beyond the purported health emergency, which centers on flavored vaping products only. These regulations ought to be more narrowly tailored to the emergency declaration.
- The ban’s inclusion of mint and menthol as prohibited flavors is overly and unnecessarily burdensome. These “flavors” are simply not in the same category as others and, at the very least, they ought to be exempted from the ban.
I am also disappointed the prohibition will take effect in 14 days rather than the 30 days that were provided in the original declaration. It is fundamentally unfair to expect small-business owners who have been making plans in reliance on your original 30 days assurance to now comply in less than half the time.
However, I am pleased to see two of the concerns that were voiced in committee were removed from the proposed version.
- The presumption that possession of four or more products constitutes an unlawful intent to sell which could have unfairly criminalized unintentional violations of the rules; and
- The ban extending to alternative nicotine products, which was beyond the scope of the declared public health emergency.
There is little question as to the severity of the youth epidemic that both Michigan and the nation face over the use of vaping products and e-cigarettes. We have a responsibility to our constituents, however, to ensure regulations go no further than necessary. To that end, I sincerely hope you will address the concerns listed here and thank you in advance for your consideration.
CC: Greg Bird