On Oct.8, 2019, Gov. Steve Bullock directed the Montana Department of Public Health and Human Services (DPHHS) to implement emergency administrative rules to temporarily prohibit the sale of flavored e-cigarettes.

The emergency rules will be filed on October 8, 2019, the ban will take effect on Oct. 22, 2019, and it will last for 120 days, the maximum allowed by law. The rules will expire on Feb. 19, 2020.

Link to the emergency rules: https://dphhs.mt.gov/administrativerules.

What are emergency rules?

Emergency rules allow the Department to respond to rapidly-developing public health crisis. They are adopted in circumstances where there is an imminent threat to public health, safety or welfare. The rules are temporary.

What do the emergency rules ban?

The emergency rules apply to all flavored e-cigarette/ vaping products.

Does this emergency rule impact medical marijuana?

The rule impacts all flavored vaping products, regardless of whether they include THC, nicotine, CBD or other substances.

How does this impact Tribes?

The emergency rules will not apply to the Tribal reservations in the state. The Tribes in Montana are sovereign nations, which have their own authorities to implement policies to protect the health of their communities. DPHHS would highly recommend the Tribes adopt similar policies as well.

Does this apply to online sales as well?

Yes, for any vapor products intended for delivery to a person living in Montana.

Under what authority is the department putting these rules in place?

State law (2-4-302) reads that emergency rules may be adopted only in circumstances that truly and clearly constitute an existing imminent peril to the public health, safety, or welfare that cannot be averted or remedied by any other administrative act.

How will the emergency rules be enforced?

DPHHS and the local health departments have authority to enforce this measure and will enforce it in the same way current tobacco protections such as the Clean Indoor Air Act are enforced. Inspections of retailers and citizen complaints will be used to monitor compliance with the rules.

What action is required of retailers?

Because this is a temporary ban, retailers at this time are not being asked to destroy products. However, products are required to be taken off shelves upon the rule going into effect on Oct. 22.

What happens if I violate the rules?

A person who violates any provision of the rules can be charged with a misdemeanor punishable by a term of imprisonment not to exceed 90 days and a fine of up to $500. Each day in violation of the rules is a separate offense. DPHHS or a county attorney can also sue an individual or business to abate or restrain activity in violation of the rules, and costs and fees related to that action awarded.

Who has the authority to enforce the rules?

DPHHS and the local health departments have authority to enforce this measure and will enforce it the same way current tobacco protections such as the Clean Indoor Air Act are enforced. Inspections of retailers and citizen complaints will be used to monitor compliance with the rules.

Why are flavored e-cigarettes being banned?

Protecting the health, safety, and well-being of Montanans and young people is of paramount importance. E-cigarette use is an epidemic among Montana youth. The dramatic increase in use of e-cigarettes, or vaping, by youth is driven in large part by flavored e-liquids, and flavors are a principal reason that youth initiate and maintain e-cigarette use. E-cigarettes are now the most commonly used tobacco product among high school students. The 2019 Montana Youth Risk Behavior Survey showed nearly a third (30 percent) of Montana high school students currently use e-cigarettes and more than half (58 percent) have tried them. Approximately 43,000 Montana youth between ages 12 and 18 have tried vaping products and 22,000 Montana youth are currently using vaping products. Between 2017 and 2019, the percentage of Montana high school students using these products frequently (on 20 or more of the past 30 days) has increased by 243 percent and daily use has increased by 263 percent. There has been a recent and alarming outbreak of vaping-associated pulmonary illness (VAPI) in multiple states. As of Oct. 4, this outbreak includes 1,080 confirmed and probable cases and 21 deaths linked to e-cigarette use in 48 states and one U.S. territory.

Montana has two confirmed cases, one individual in their 30s from Yellowstone County, and a second individual in their 20s from Gallatin County. Half of those effected are under 25 years old. People are using an array of products and no one product, brand or substance has been linked to all the cases.

What are some of the risks to youth from e-cigarette use?

Youth are uniquely at-risk for long lasting effects of nicotine exposure because the brain continues to develop until age 25. Nicotine exposure during adolescence harms the part of the brain that controls attention, learning, mood and impulse control. Nicotine, in any form, is unsafe for youth. Nicotine is highly addictive and can prime the brain for addiction other drugs in the future. Research indicates that youth who use e-cigarettes are four times more likely to become cigarette smokers, and the CDC states the surge in e-cigs has erased past progress in reducing youth tobacco use.

Are e-cigarettes regulated?

Not currently. E-cigarettes came under the purview of the FDA in 2009 but the FDA has consistently pushed back enforcement of these regulations. After public health groups sued this year, a U.S. District Court ordered that these regulations must be enforced no later than May 12, 2020.

Are e-cigarettes less harmful than regular cigarettes?

Youth who start using tobacco and nicotine products before their brains are fully developed are at a greater risk of addiction to other drugs. While some flavorings may be “generally recognized as safe” for food consumption, they have not been proven safe for inhalation. Some of the other chemicals in e-liquids and in the aerosol from e-cigarettes are known to cause cancer in humans. Heavy metals such as lead and cadmium that have been found in e-cigarette aerosol can cause respiratory distress and disease. The FDA has never approved these devices for tobacco cessation.

You’re banning flavored vaping products. Does that mean it is safe to use unflavored vaping products?

No. The Surgeon General, the CDC and DPHHS have issued recommendations that youth, young adults and pregnant women should not use these products and that adults currently using these products stop. The emergency rules regarding flavored vaping products are specifically focused on Montana youth.

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