In this column, Due Diligence, erstwhile attorney and GQ staff writer Jay Willis untangles the messy intersection of law, politics, and culture.
Earlier this month, as concerns mounted across the country about the latent dangers of vaping, Michigan became the first state to ban the sale of flavored e-cigarettes altogether. "My number one priority is keeping kids safe," said Democratic governor Gretchen Whitmer in a statement announcing the emergency ban, which is set to last six months. "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." A week later, President Donald Trump suggested that his administration might follow Whitmer's lead in the not-so-distant future. "People are dying with vaping," he said, "so we're looking at it very closely."
The Michigan Department of Health and Human Services (MDHHS) draft rules implementing this measure, however, are not exactly a case study in best practices—and highlight some of the practical problems that could plague future attempts at regulating e-cigarettes, too. Most of the draft rules deal generally with how retailers can and (mostly) cannot advertise non-flavored e-cigarette pods and other products: They cannot, for example, pitch them as healthier alternatives to cigarettes, and must keep marketing materials at least 25 feet away from candy, snacks, sodas, or cash registers.
The construction of Rule 2, though, is a bit more troublesome. In addition barring retail sales and distribution of flavored e-cigarette products, it expands to cover "persons" who possess "four or more flavored tobacco products." Anyone whose personal inventory exceeds that threshold, the rule says, is presumed to intend to sell those products to someone else. Rule 6, meanwhile, provides that anyone who violates "any provision of these rules"—including Rule 2—is guilty of a misdemeanor punishable by a fine of up to $200 and/or six months in jail per item.
Put differently, under the plain language of Governor Whitmer's ban, it appears that carrying a four-pack of creme-flavored Juul pods could get you locked up until next spring. Carrying two four-packs could get you a year.
An important caveat requires mention here: As the rule states, the presumption of one's intent-to-sell is rebuttable in court. Anyone prosecuted for this sort of possession, then, could explain that they in fact intended to vape those creme pods in the privacy of their own home, not deliver them to a corner store for illicit sale to creme-pod enthusiasts. If the court believes such testimony, perhaps a defendant can get themselves out of trouble.
Even so, as written, the ban could have serious consequences for those swept up in it—especially for the teens it is ostensibly designed to protect. As noted in a Detroit News op-ed penned by Jesse Kelley and Carrie Wade of the conservative R Street Institute, Michigan's criminal code automatically treats 17-year-olds as adults, which means high school juniors prosecuted for breaking these rules could, in theory, end up with an honest-to-God criminal record. By contrast, a minor in possession of alcohol earns only a civil infraction and a fine of up to $100 for the first offense. (Coincidentally, state lawmakers are hammering out a package of reform bills that would shift 17-year-olds back to the juvenile justice system, but it won't take effect until 2021.) Rigorous enforcement of marijuana laws tends to disproportionately affect members of minority groups; it stands to reason that rigorous enforcement of flavored-vape laws could reflect the same pattern.
If e-cigarette products really pose as serious a danger as regulators think, it's no surprise to see public officials taking steps to limit their availability. At best, however, this appears to be another entrant in this country's tradition of regulating mind-altering substances as clumsily as possible. Of the many public health goals a ban on flavored vape products might accomplish, "subjecting kids to a real possibility of serving time" is probably not among them.
The e-cigarette and vaping industry faces renewed scrutiny from federal regulators over its alleged efforts to market products to underage consumers.
Originally Appeared on GQ