After multiple attempts to enact a flavor ban in Michigan without adequate stakeholder input, Governor Gretchen Whitmer is turning to the state’s Department of Health and Human Services (MDHHS) again to enact a dangerous ban on flavored vapor products.

If adopted, the MDHHS rule would ban the sale of flavored vapor products regardless of market authorization from the FDA.

The flavor ban proposed by MDHHS goes well beyond the federal Tobacco Control Act standard by indiscriminately banning flavored products whether they have a marketing order or not. While states are well within their rights to adopt laws that are stricter than FDA regulations, state legislatures and departments of health are not equipped to perform the type of scientific review that might support such restrictions. As a case in point, the FDA’s Center for Tobacco Products (CTP) has spent the past several years hiring hundreds of new employees just to meet the anticipated needs of the agency as it reviews potentially thousands of PMTAs.

By way of background, all tobacco and non-therapeutic nicotine products that were not on the market in the U.S. before February 15, 2007 must receive market authorization from the FDA. Manufacturers of new, safer nicotine products must submit a premarket tobacco application (PMTA). If the FDA accepts their application, a manufacturer has up to one year to continue selling their products. This is one of many steps toward receiving a marketing order.

The Tobacco Control Act established the PMTA process. The law also grants FDA the discretion to allow new products on the market while applications are being reviewed. This is a provisional authorization subject to revocation at any time. Not only is this standard enshrined in US law, but it was recently upheld in federal court.