While we focus primarily on Michigan because it's our home base, vape juice flavor bans are by no means restricted to Michigan. In the state of Illinois, for example, home of our BloNoSmoke vape shop locations, the last two months have seen a concerted legislative effort to prevent the sale of vape juice with any flavor other than tobacco, accompanied by a familiar refrain of preventing youth vaping. The proposed Illinois flavor ban is misguided, and while we applaud its goals, we condemn its methods.
At least it's being worked on at the right place: in the legislative branch. And at the state level, too, which is good: local government best serves the needs of the local population, with federal action best reserved for those things which affect us all equally. However misguided these efforts, they're being done in the right places, in the right ways – not with abuses of executive emergency powers, as we've seen elsewhere.
How we got here
On September 5, 2019, Rep Deb Conroy filed HB3883, the proposed Flavored Tobacco Ban Act, which would “[Prohibit] the sale or distribution by an establishment of any flavored tobacco product” in the state of Illinois. It also provided for enforcement - including allowing the Department of Revenue to suspend the license of violators. It enacted its power by amending the Tobacco Products Tax Act of 1995, probably the simplest way, legislatively, to accomplish its goal.
This was followed a week later by Rep Grant Wehrli filing HB3887, also a proposed Flavored Tobacco Ban Act, but this one was much more ambitious - which possibly is one reason it’s been stalled out to the Rules Committee since October 17, 2019. This act also prohibited flavored tobacco products, but defined “tobacco product” as “[including] products containing tetrahydrocannabinol and products containing a mixture of tetrahydrocannabinol and nicotine”, and similarly included licensed marijuana dispensaries as “tobacco retailers”, whether they carried any product containing tobacco or not. It picked up two co-sponsors in the weeks after its filing, but otherwise has remained stagnant.
HB3883, meanwhile, has gathered over a dozen co-sponsors, and while it was referred to the Rules Committee the same day as HB3887, HB3883 was assigned to the Human Services Committee on October 21. It was amended the next day to include menthol flavors amongst the banned components of vape juice. A meeting with the Human Services Committee was scheduled for October 25, but at the last minute, possibly as a result of intense lobbying by groups opposed to a flavor ban, the committee meeting was canceled.
And suddenly, things moved to the Senate, and HB3883 is now magically SB0668. A hearing was rushed for October 29, and that hearing gives us an excellent insight into exactly what the problem is.
Hearing them out
The Senate hearing for SB0668 was very helpful in understanding where proponents of flavored vape juice bans are coming from. It’s important to understand what they believe if we’re going to understand why we disagree, and come to an agreement. And based on the testimony we heard, these are not evil people in the pocket of Big Donor, or foolish people who can’t understand reason: they’re simply not vapers, and they don’t understand the market and its issues as well as we might. Which is why education is the best solution to the problem.
As with many flavor bans, the impetus is twofold. First, it’s implicitly rooted in the Great Vape Scare of 2019, which saw contaminated bootleg THC cartridges and other illicit and “bathtub” products cause shocking illnesses and even deaths. This struck everyone hard, not least the vape community, which had seen their hobby - generally regarded as a safer alternative by those in the lifestyle, and with absolutely no precedent in a decade of vaping’s existence - demonized by some ill-understood ailment. Once the facts were in, of course, and our kneejerk reactions safely stored away under actual evidence, things calmed down, but for some, the fear persisted, and this made the timing ideal for proposing some legislation peripherally condemning vaping. It’s an emotional bait-and-switch, and it’s a little cynical, but it definitely works.
The second reason for the proposed Illinois flavor ban is much more explicit: the desire to prevent youth vaping. In this, all adults on both sides of the issue can agree: we do not want these products in the hands of underage users, period. Unfortunately, a flavor ban isn’t likely to achieve our shared goal of reducing underage nicotine use, and it likely will come at a socially-unacceptable health and economic cost.
Why it won't work
We discuss why flavor bans don't work in more detail in our blog, "Why a Flavor Ban Won't Save the Children", but in short, it won't keep children from using nicotine, it's not going to fix EVALI (which is caused by THC vaping, not nicotine vaping), it'll cripple or kill a burgeoning domestic industry, and it'll produce a market filled with illicit, homemade, "bathtub" product.
The theory is that flavors attract children, but flavors attract people: it's just that children are people. Before vaping, teenagers smoked at roughly the same rates they're vaping now, and that was with cigarettes' horrible "burning plants" taste; removing flavors from the market isn't going to change the rate of nicotine use among teenagers. What did make a difference, in the years after teen smoking's peak, is a combination of education and age verification, which is exactly the best solution now.
A flavor ban isn't going to address the sudden rush of vaping-related illnesses, because these tragic and preventable illnesses appear to be caused entirely by bootleg, illegal product which wasn't made by professional companies in cleanrooms. Flavor bans can't touch the black market because their product is already illegal!
The vape market in America is worth billions of dollars, and that's not all Big Vape: this was a bottom-up industry, so a lot of the companies hardest-hit by a flavor ban are mom-and-pop operations with fewer than a dozen employees, or mid-sized local companies with under a hundred employees. If you remove 85 percent of their revenue – the approximate market share of flavored vape juice – that's a lot of empty plates in your state, a lot of hungry families. That's not tear-jerking rhetoric: it's sad economic reality. Trust me: it's my family's plates, too.
Worse than not fixing the Vape Panic issue, flavor bans could well create them. Professionally-bottled e-liquid is made in industrial production labs with rigorous standards of mixing and air quality and training regimens. Knock those players out of the market, and turn flavored vape juice over to black-market individual production, and you'll have "bathtub" juice flooding the market…the exact situation of prohibition leading to tragic health effects that started this. As John Dixon said at the SB 668 hearing, "You think you have a health epidemic now? Let people start making this stuff out of their basement."
Ultimately, we need to focus on age verification and strict access control, rather than on removing freedom of choice from millions of adults who prefer tasting caramel creme to tasting burning leaves.
What happens next
This isn’t the last of this. Some people may have seen Michigan’s judicial injunction and thought, “We’ll be fine!” but that’s not how this is going to work. Michigan’s flavor ban is a battle we haven’t even won yet, simply one that’s in cease-fire, and the war has only just started. This is nationwide, and will be fought state-by-state - as well as at the federal level, where there’s increased talk of outright bans, the FDA remains a constant consideration, and the House Ways and Means Committee recently approved the first tax on liquid nicotine (with a very familiar refrain: reducing youth vaping). It’s easy to say, “What’s happening there doesn’t affect me,” but it does: every victory eases the next one. Movements have inertia. Just the news of a flavor ban in Michigan spawned similar conversations at the federal level.
We cannot wait until it’s personal. We cannot wait until it’s our state, until it’s our vape shop, until it’s our juice we can’t get. We have to look ahead and see where this is heading, and stop it while we can. To that end, follow CASAA’s Call to Action page. Read Vape University's Political Science section and watch our news videos. If you’re able, contribute funds - however much you’re able to - to Defend MI Rights, or on GoFundMe, so we have the resources to continue the fight.
Flavor bans don’t work. They don’t help, and the hurt they inflict is deep. They penalize the professional market and incentivize the dangerous illicit market, and they don’t keep nicotine products out of the hands of minors. It’s time we focused on age verification and access control, and let adults continue to enjoy flavored vape juice as they’ve been doing for over a decade.
While the legislative season in Illinois is drawing to a close, this issue is by no means dead. Many in the House and Senate, and many in the executive branch, including the Governor, are actively and openly hostile to vaping. Some have vowed to end all vaping, not just youth vaping, and this is merely their first step in a long march toward reduction of choice in the nicotine market.
If you want to follow the most recent news regarding the battle for Illinois, do as we do and turn to SFAC of Illinois, who is absolutely on top of this issue, moment to moment, and Victoria Vasconcellos of Cignot who is working hard to make sure everyone is kept up-to-date on the issues. Similarly, CASAA is an exceptional source of information, and they have a Call to Action page for HB 3883 / SB 0668 which is a constant supply of things you can do to help.
One thing you can count on: BloNoSmoke isn’t going anywhere. Just like Michigan labored under a flavor ban briefly but Mister-E’s was still there, BloNoSmoke will be serving the needs of our Decatur and Lincoln communities for the foreseeable future. We’ll be fighting alongside you all the way, and we’ve got some great tobacco flavors while they get it sorted out. We got you.