FREQUENTLY ASKED QUESTIONS
How can the Michigan Department of Health and Human Service (MDHHS) implement emergency rules?
MDHHS is empowered under the Public Health Code to exercise authority and promulgate rules to safeguard the public health. MCL 333.2226(d). The Department may also promulgate emergency rules without following the notice and participation procedures required by sections 41, 42, and 48 of 1969 PA 306, MCL 24.241, MCL 24.242, and MCL 24.248 of the Michigan Compiled Laws in circumstances where a finding of emergency is made. Based upon the science, data, and evidence, and pursuant to its authority under the Public Health Code and the Administrative Procedures Act, MDHHS concludes that an emergency exists with regard to the youth use of e-cigarettes and alternative nicotine products and that emergency rules are necessary to preserve the public health, safety, and welfare.
What evidence supports the implementation of these emergency rules?
Emergency rules are promulgated to address a recent and staggering increase in youth usage of vapor products and alternative nicotine products including vapes, vaporizers, vape pens, hookah pens, and e-cigarettes. In December of 2018, the United States Surgeon General Jerome Adams officially declared e-cigarette use among youth in the United States an epidemic and called for prompt action to protect the health of young people, including the restriction of access to e-cigarettes in retail settings and reducing access to flavored tobacco products by young people. The Department of Health and Human Services is promulgating rules to prohibit the sale of certain alternative nicotine products and vapor products and to implement time, place, and manner restrictions on advertising related to those products.
When do the emergency rules go into effect?
Emergency rules are effective for 180 days and may be extended once for a period of not more than six months.
What do the emergency rules cover?
The emergency rules will prohibit the sale, offering for sale, giving, transporting, or otherwise distributing flavored vapor and alternative nicotine products by retailers; prohibit possession with intent to sell, give, or otherwise distribute flavored vapor or alternative nicotine products; and will place certain advertising restrictions on vapor products, including the use of terms like “clean,” “safe,” and “healthy.”
Will the local regulation/ordinance in my county/city/township still apply?
The rules do not impact local laws applying to vapor products and alternative nicotine products that are at least as stringent as the emergency rules.
Where can I find a copy of the emergency rules?
Once the emergency rules are finalized and filed with the Secretary of State, they will be available on michigan.gov/e-cigarettes.
What are vapor products?
Michigan law (MCL 722.644(h)) defines vapor products as a noncombustible product that employs a heating element, power source, electronic circuit, or other electronic, chemical, or mechanical means, regardless of shape or size, that can be used to produce vapor from nicotine or any other substance, and the use or inhalation of which simulates smoking. Vapor product includes an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device and a vapor cartridge or other container of nicotine or other substance in a solution or other form that is intended to be used with or in an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device. Vapor product does not include a product regulated as a drug or device by the United States Food and Drug Administration under 21 USC 351 to 360fff-7.
What are alternative nicotine products?
Michigan law (MCL 722.644(a)) defines alternative nicotine products as a noncombustible product containing nicotine that is intended for human consumption, whether chewed, absorbed, dissolved, or ingested by any other means. Alternative nicotine product does not include a tobacco product, a vapor product, food, or a product regulated as a drug or device by the United States Food and Drug Administration under 21 USC 351 to 360fff-7.
Some of the vapor products are advertised as nicotine free; are they covered by this Emergency Rule?
Please see the definition of vapor products above. The emergency rules prohibit the use of fraudulent or misleading terms or statements. Fraudulent or misleading terms or statements are those “likely to induce false or unevidenced beliefs regarding the properties of the vapor products or alternative nicotine products in a portion of the viewing audience.”
Are tobacco products covered by the emergency rules?
No. The rules apply only to vapor products and alternative nicotine products.
How long do I have to get rid of my stock of flavored vapor products and alternative nicotine products?
The prohibition on sale of flavored vapor products and alternative nicotine products takes effect upon the filing of the emergency rules with the Secretary of State. Retailers who sell, offer for sale, give, transport, or otherwise distribute flavored vapor products or alternative nicotine products after this date are subject to penalties.
Do I have to make any changes to in-store advertisement?
Please refer to the full text of the emergency rules, which will be made available as soon as they are signed and filed. The rules require that advertisements for vapor products or alternative nicotine products not be placed within 25 feet of the point of sale, within 25 feet of candy, foodstuff, or soft drinks, or in such a manner that the advertisement can be readily seen by a person standing outside of the building at a distance of 25 feet.
What happens if I violate the rules?
A person who violates any provision of the 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, as set forth by MCL 333.2261.
Who is subject to the penalties described above?
Retailers are subject to the emergency rules. Additionally, any person who possesses four or more flavored vapor products or flavored nicotine products is rebuttably presumed to possess those items with the intent to sell. Lastly, any person who transports a flavored vapor product or alternative nicotine product intended for delivery to a retailer in violation of the rules is also subject to the enforcement provisions in the rules.
What happens if I am in possession of flavored vapor products or alternative nicotine products?
A person who possesses four or more flavored vapor products or alternative nicotine products is rebuttably presumed to possess said items with the intent to sell and is subject to the penalties described above.
Can a retailer or person delivering to a retailer transport flavored vapor products or alternative nicotine products?
No. A person shall not transport a flavored vapor product or flavored alternative nicotine product intended for delivery to a retailer in violation of the rules.
Who has the authority to enforce the rules?
The rules will be enforceable by both State and local enforcement with assistance by the Michigan Department of Health and Human Services Tobacco Section.