This story was most recently updated Dec. 19, 2019 with new information on bans.
In December, a judge upheld Montana's temporary ban on all flavored vaping products, including flavored nicotine, THC and CBD. It affects products sold in stores and online and went into effect Dec. 18.
In November, Massachusetts became the first state to enact a law banning flavored tobacco and vaping products, including menthol cigarettes. The ban on flavored vaping products went into effect immediately, while the ban on menthol cigarettes goes into effect June 1, 2020.
The American Medical Association called for a ban on all e-cigarette and vaping products from the market. "We have very little evidence about the short- and long-term health consequences of e-cigarettes and vaping products,” said AMA President Patrice A. Harris, MD, in a statement.
More and more states are trying to enact some type of ban on e-cigarettes -- but are meeting resistance. Courts have blocked many of the bans already, while others are being challenged in court.
Public health officials, including tobacco control experts, say the bans may backfire, driving people who vape as an alternative to traditional cigarettes back to smoking.
Michael Siegel, MD, a professor of community health sciences at Boston University School of Public Health, says an estimated 2.5 million former cigarette smokers use e-cigarettes.
"We take these 2 million people and basically say, 'Congratulations on this great accomplishment [of smoking cessation.]' Now we are going to take away the product that is helping you quit," he says.
Actions by States, Governors, and Departments of Health
Nine states have taken action on e-cigarettes, especially against flavored products favored by teens and young adults, according to the Public Health Law Center, an organization that advocates for tobacco reduction and other health issues. In addition to Massachusetts and Montana, they include: California, Michigan, New York, Oregon, Rhode Island, Utah and Washington. Washington also added products with vitamin E to its ban. The CDC recently tied vitamin E to the outbreak of lung illness related to vaping.
Governors have set up the bans with executive orders, or state health departments have tried emergency rules, according to the National Conference on State Legislatures.
The Public Health Law Center says that at least one lawsuit has been filed in each state that has taken steps to enact an emergency ban on vaping products.
The lawsuits challenge the bans in a number of ways -- First Amendment, violations of the commerce clause, government overreach and other issues.
As of Nov. 7, courts granted temporary restraining orders or preliminary injunctions in Michigan, Montana, New York, Oregon and Utah. These actions block enforcement, at least temporarily.
Vaping product bans in Rhode Island and Washington are still in effect, but legal challenges are pending, the Public Health Law Center says. In Massachusetts, although a court order lifted the medical marijuana part of the state's vaping ban, its Cannabis Control Commission ordered a quarantine on all marijuana vaping products over concern about vitamin E contamination, except the medical use of flower vaporizers. The existing testing regulations in the state do not require testing for vitamin E.
A ban enacted by the Oglala Sioux Tribe, passed in September and banning all electronic tobacco devices on the Pine Ridge Reservation, is permanent, the Public Health Law Center says.
San Francisco voted in an e-cigarette ban in June, effective January 2020; it survived a challenge in November.
A rundown of states and their proposed actions is on the Public Health Law Center site.
On Wednesday, the House Energy and Commerce’s Health Subcommittee passed a bill to prohibit flavored tobacco products, including flavored e-cigarettes and menthol cigarettes. But that proposed legislation has many more steps to go if it is to become law.
In September, the White House announced that the federal government plans to ban flavored e-cigarettes, including menthol-flavored products. The FDA is developing guidelines. They have not yet been issued.
On Nov. 8, President Donald Trump said he plans to raise the U.S. federal legal age to buy e-cigarettes from 18 to 21.
Bans: Pro and Con
Meredith Berkman of Parents Against Vaping says her group is not made up of prohibitionists. "Our position is, while adults may prefer and want and need flavors, then leave tobacco flavor for adults. We want all the [other] e-cigarette flavors, including mint and menthol, off the market. Get rid of the flavors; the flavors have hooked the kids."
Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, says "the evidence is clear that flavored e-cigarettes have fueled this epidemic." The latest National Youth Tobacco Survey found that most exclusive e-cigarette users prefer flavored products.
Others say bans are not the solution and may backfire. "I think the idea of banning flavors is a terrible idea," says Siegel
He says many who switch from traditional cigarettes to e-cigarettes do gradually reduce the levels of nicotine they inhale.
He also does not believe that banning flavored e-cigarettes will stop young people from vaping. "Kids are not going to stop vaping," Siegel says. Despite the lung injury toll, "kids are vaping because vaping is cool right now. Kids do what is cool."
"I think the bans are going to make the outbreak worse instead of better," he says.
Peter Grinspoon, MD, an instructor of medicine at Harvard Medical School and a board member of Doctors for Cannabis Regulation, agrees. "I don't think much good comes out of prohibiting things," he says. "In reality, nicotine is so addictive, people are more likely to go back to smoking cigarettes instead of giving up nicotine."
Citing CDC evidence that many of the THC vaping products making people sick were bought from the illicit market, he questions the wisdom of banning the regulated vapes, which can be monitored and controlled. "You push people to the unregulated market," he says.
Grinspoon echoes the point made by others who oppose e-cigarette bans. "This whole vape crisis is a strong argument to legalize cannabis federally and to regulate it and have national standards."