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Judge Allows Enforcement To Begin On Temporary Restrictions On Flavored E-Cigarettes


December 25, 2019 | View PDF

A court decision is allowing enforcement of emergency rules to temporarily restrict the sale of flavored e-cigarette products in Montana to begin Wednesday, Dec. 18, at 1 p.m.

“We have refused to stand idly by while a powerful industry hooks a new generation of users and puts them right in the path of the national outbreak of lung injury and death,” said Department of Public Health and Human Services (DPHHS) Director Sheila Hogan. “This has always been about protecting our most vulnerable and we are pleased that the Court chose to stand with Montanans and their health by allowing the emergency rules to go forward.”

The restrictions include the sale of all flavored e-cigarette products, including flavored nicotine, THC, and CBD e-cigarette products, in-store and online. The rules do not require retailers to destroy their existing inventory. 

Retailers who sell e-cigarette products are being notified about the effective date of the emergency rules via letter notification. Information has also been made available on the DPHHS website. The website provides guidance on how the emergency rules will be enforced, including through citizen complaints and inspections of retailers by local health officials.

The agency has also developed an online system to accept citizen complaints at Citizen complaints received through the online system will be triaged to the local health department from where the complaint was made.

“We appreciate that retailers will be complying with the rule,” Hogan said. “We’ve also heard from convenience stores and gas stations in Montana and share the same goals of protecting our youth and supporting our communities.”

DPHHS continues to investigate multiple potential new E-cigarette or Vaping Product Use Associated Lung Injury (EVALI) cases. In addition, the imminent threat to public health and safety caused by epidemic levels of youth use and addiction to these products remain unchanged.

E-cigarette products are currently required to undergo premarket review for safety by the FDA. A federal court has ordered the FDA to begin enforcing these safety rules by May 12, 2020.

In addition to nicotine, e-cigarettes can contain heavy metals, ultrafine particles and cancer-causing agents like acrolein. Some flavorings, particularly those found in e-juice, have been found to be toxic and associated with inflammatory and oxidative stress in lung cells and white blood cells.

Nearly 60% of Montana high school students and 30% of middle school students have tried vaping. In 2019, almost one in ten Montana high school students vaped daily, exposing their brains to the long-term effects of nicotine damage. This is a 23% increase from 2017.

A recent report by the FDA states that 96% of 12 to 17-year-olds who initiated e-cigarette use started with a flavored product, and 70% report the flavors as the reason they use e-cigarettes.

Research shows that kids who use e-cigarettes are four times more likely to smoke cigarettes in the future than kids who do not use e-cigarettes. Nicotine exposure in youth causes long-term structural and functional changes in the brain, can lead to long-lasting effects like lower impulse control and mood disorders, and can prime young brains for addiction to other drugs such as cocaine and meth.

In addition, the CDC has not conclusively identified a cause or causes of the outbreak of pulmonary lung injury and has only just found the first potential chemical of concern. Vitamin E acetate was detected as an association in a sample of 29 EVALI case-associated specimens. There are some EVALI cases, including in Montana, identified as nicotine-only and it is still not known what is causing EVALI in nicotine-only patients. As the CDC continues additional studies and testing, public health authorities are continuing the recommendation that consumers consider refraining from using all e-cigarette products.

The ban on flavored cigarettes in 2009 was associated with a 17% reduction in the probability that middle and high school youth would become smokers, and a 58% reduction in cigarettes smoked by current youth smokers. Overall, the probability of youth using any form of tobacco dropped by 6% following the ban on flavored cigarettes.


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