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Vape Store Owners Promise Challenge To Montana's Proposed Ban

A vape device with flavor refills.
A vape device with flavor refills.

The state health department wants to resurrect a ban on flavored e-cigarette sales in Montana. A temporary ban enacted late last year expired several months ago, and now the agency wants to permanently ban the sale of almost all flavored e-cigarette products.

Some Montana vape retailers are vowing to push back hard on the idea, leading to what may be the next legal battleground between those retailers and the administration of Gov. Steve Bullock.

Though it seems like a long time ago, it has only been a few months since vaping-related lung illness gripped national headlines. National data from the Centers for Disease Control and Prevention and state data both show THC-containing e-cigarette, or vaping, products played a major role in the outbreak. But, according to the CDC, there was not enough evidence to rule out the possibility that chemicals in the non-THC vape products were playing a role.

The global COVID-19 pandemic overshadowed that story, but state health officials say their concerns about vaping either THC or standard vape juice are as urgent now as they were then. They say too many teenagers are vaping and getting hooked on nicotine in the process.

Nicole Aune with the state health department used the word ‘epidemic’ to describe the issue.

“Thirty percent of Montana high school students use e-cigarettes,” she said. “That’s compared to only 5 percent of Montana adults who use e-cigarettes.”

Aune manages the Montana Department of Health and Human Services’ tobacco use prevention program. The agency estimates 22,500 Montana middle and high schoolers currently vape, and reports the rate of high school students reporting frequent vaping has grown 243% since 2017.

“The flavors are a huge reason why kids are starting to use these products,” Aune said.

Vaping’s popularity among young people is not unique to Montana. Four states with similar concerns recently enacted bans on the sale of flavored vape products.

A vape device with flavor liquids.
Credit iStock
A vape device with flavor liquids.

Last November, Massachusetts became the first to roll out restrictions of all flavored tobacco products, including menthol cigarettes. New York, New Jersey and Rhode Island followed suit this year with bans on the sale of flavored e-cigarettes.

This week, Bullock’s administration announced its intent to make Montana the next state to ban almost all flavored e-cig products. Tobacco flavoring will remain available, but retailers say it’s not a big seller.

The proposal is being applauded by health officials and excoriated by industry businesses.

“I have a legal product in the state of Montana, a product that helps people,” Deanna Marshall said. “I am not going to stop selling this product.”

Deanna and her husband Ron own Freedom Vapes, an independent e-cig retailer with stores in Bozeman, Belgrade and Hamilton.

“They can fine me, arrest me — whatever they have to do,” she said. “I’m going to keep selling it, and we’ll go to court then.”

It wouldn’t be the first time the Marshalls and the local trade organization they belong to, the Montana Smoke Free Association, have squared off against the state health department.

Last fall, they sued to block the Bullock administration’s temporary ban on flavored vaping products. A district judge eventually upheld the ban.

Deanna is the Association’s secretary, but this week only spoke on behalf of her business. And she’s prepared to challenge the state all over again.

“You gotta do what you gotta do so that I can keep a 95 percent healthier product, or safer product, on the market for people who don’t want to use deadly tobacco anymore,” Deanna said.

E-cig advocates claim vaping nicotine leads to far safer health outcomes than smoking traditional cigarettes. They call it harm reduction.

Montana’s vape retailers say they do not sell to kids, and that the vast majority of their legal adult customers vape to kick the smoking habit. They add that fruity or spiced flavorings help them steer clear of cigarettes.

But Aune said far too many of these products still wind up in children’s hands.

“We know youth who use these cigarettes are four times more likely to go on and use combustible cigarettes in the future," she said. "While retailers may be responsible, that’s not enough to stop the tobacco industry from targeting youth with enticing flavors.”

Health department officials say the agency has the authority to create and enforce rules regarding public health issues. They added the risk to kids is so high, they can’t afford to wait to run the proposal through the legislature when it next convenes in January.

Deanna counters that the health department does not have that rulemaking authority. She said the proposal wouldn't stand a chance in front of state lawmakers.

The proposal to permanently end flavored e-cigarette sales in Montana is described by the American Cancer Society as a “good first step.”

Kristin Page-Nei of the Society’s advocacy affiliate, the Cancer Action Network, said it’s time to ban the sale of all flavored tobacco products in Montana. The group also recommended prohibiting “… e-cigarette use wherever smoking is prohibited,” she said. “Our Clean Indoor Air Act does not prohibit that at this time, significantly increasing the tax on all tobacco products. We know our youth are the most price sensitive.”

The state health department will take public comments on the proposal to permanently ban the sale of flavored vaping products during a virtual hearing, as well as by mail, fax or email.

A screenshot of the proposed ban's rule posting first page, where it lists how to join the remote public hearing.
Credit Montana Department of Health and Human Services / Captured 06.18.20 from https://dphhs.mt.gov/Portals/85/rules/37-923pro.pdf
A screenshot of the proposed ban's rule posting first page, where it lists how to join the remote public hearing.

A public hearing will be held via remote conferencing to consider the proposed rules on Thursday, July 16, 2020, at 3 p.m. Interested parties wanting to provide public comment are encouraged to participate by calling into the hearing. Call-in information is provided in the rule posting.

Comments can also be submitted:

In writing to: Heidi Clark, DPHHS Office of Legal Affairs, P.O. Box 4210, Helena, MT, 59604

By fax: (406) 444-9744

Or by emaildphhslegal@mt.gov

They must  be received no later than 5 p.m. on July 24, 2020, when the public comment period ends.

Copyright 2020 Montana Public Radio. To see more, visit Montana Public Radio.