Ban on flavored vaping products goes into effect across Montana

Posted at 7:11 AM, Dec 19, 2019
and last updated 2019-12-19 09:11:17-05

A court decision released on Tuesday is allowing enforcement of emergency rules to temporarily restrict the sale of flavored e-cigarette products in Montana that went into effect on Wednesday, December 18, at 1 p.m.

The Montana Department of Public Health & Human Services said in a news release on Wednesday morning that restrictions include the sale of all flavored e-cigarette products, including flavored nicotine, THC, and CBD e-cigarette products, both in-store and online. The rules do not require retailers to destroy their existing inventory. The ban will last for 120 days.

Retailers who sell e-cigarette products are being notified about the 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 health officials.

Here is a timeline of events leading up to ban:

Here is the latest information from the federal Centers for Disease Control & Prevention (CDC):

  • CDC has analyzed national data on use of THC-containing product brands by e-cigarette, or vaping, product use-associated lung injury (EVALI) patients.
    • Overall, 152 different THC-containing product brands were reported by EVALI patients.
    • Dank Vapes, a class of largely counterfeit THC-containing products of unknown origin, was the most commonly reported product brand used by patients nationwide, although there are regional differences . While Dank Vapes was most commonly reported in the Northeast and South, TKO and Smart Cart brands were more commonly reported by patients in the West and Rove was more common in the Midwest.
    • The data further support that EVALI is associated with THC-containing products and that it is not likely associated with a single THC-containing product brand.
  • CDC and FDA recommend that people should not use THC-containing e-cigarette, or vaping, products, particularly from informal sources like friends, family, or in-person or online sellers.
  • Vitamin E acetate should not be added to e-cigarette, or vaping, products. Additionally, people should not add any other substances not intended by the manufacturer to products, including products purchased through retail establishments.

Laboratory Findings Reported November 8, 2019:

  • Analyses of bronchoalveolar lavage (BAL) fluid samples (fluid samples collected from the lungs) of patients with e-cigarette, or vaping, product use-associated lung injury (EVALI) identified vitamin E acetate , an additive in some THC-containing e-cigarette, or vaping, products.
  • CDC laboratory test results of BAL fluid samples from 29 patients submitted to CDC from 10 states found vitamin E acetate in all of the samples.
    • THC was identified in 82% of the samples and nicotine was identified in 62% of the samples.
    • CDC tested for a range of other chemicals that might be found in e-cigarette, or vaping, products, including plant oils, petroleum distillates like mineral oil, MCT oil, and terpenes (which are compounds found in or added to THC products). None of these chemicals of concern were detected in the BAL fluid samples tested.
  • This is the first time that we have detected a chemical of concern in biologic samples from patients with these lung injuries. These findings provide direct evidence of vitamin E acetate at the primary site of injury within the lungs.
  • These findings complement the ongoing work of FDAexternal icon and some state public health laboratories to characterize e-liquid exposures and inform the ongoing multistate outbreak.

About the Outbreak:

  • CDC is only reporting hospitalized EVALI cases and EVALI deaths regardless of hospitalization status. CDC has removed nonhospitalized cases from previously reported case counts. See Public Health Reporting for more information.
  • As of December 10, 2019, a total of 2,409 hospitalized EVALI cases have been reported to CDC from all 50 states, the District of Columbia, and two U.S. territories (Puerto Rico and U.S. Virgin Islands).
    • Fifty-two deaths have been confirmed in 26 states and the District of Columbia (as of December 10, 2019).
  • Although the number of reported cases appears to be declining, states are still reporting new hospitalized EVALI cases to CDC on a weekly basis and should remain vigilant with EVALI case finding and reporting.


(From Mike Dennison/MTN News in Helena) A state district judge late Tuesday declined to block the Bullock administration’s emergency ban on flavored e-cigarette or vaping products, clearing the way for the ban to take effect Wednesday in Montana. The state’s top health official said it is informing vaping-product sellers by letter, but that the ban is effective as of 1 p.m. Wednesday.

“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,” said Sheila Hogan, director of the Department of Public Health and Human Services. State health officials said the ban is needed to help stave off an epidemic of vaping by youth – even though it’s illegal to sell vaping products to those under 18.

Vape-shop owners sued the state in October, challenging the ban as “arbitrary and capricious,” and asked District Judge Jennifer Lint of Hamilton to block its enforcement while she decided the overall lawsuit.

Late Tuesday, Lint rejected that request – and strongly indicated that she believes the rule can withstand legal scrutiny. Lint said the state had presented a strong case that flavored vaping products have led to an explosion in use by teen-agers – and therefore, a health emergency exists. She also said that vape-shop owners did not show that they will suffer “irreparable harm” from a loss of business, because they have other legal remedies to recover lost costs.

“The health and lives of people who vape, especially minors, are currently threatened by the (vaping-related lung injury) outbreaks and youth’s development is threatened by the easy on-ramp to nicotine addiction provided by flavored vaping liquids,” she wrote. “Preventing further harm to the public health is more important than preventing economic harm to vapor-product businesses.”

Ron Marshall of Hamilton, the owner of one of three vaping businesses that filed the lawsuit, told MTN News Wednesday that his shops are still open and he’s complying with the ban. Yet he said it’s likely that some shops will shut down, because of their reliance on the sale of flavored products. “Small businesses took a big shot today,” he said. “And the black market is wide-open now. It’s just sad.”

In the judge’s order, she noted that vape-shop owners testified that flavored products make up about 65 percent of their business.

The Bullock administration issued its emergency ban Oct. 8 and said it would start enforcing the ban two weeks later. Vape-shop owners and their professional association filed suit Oct. 17 to block and void the ban. Lint placed a temporary hold on the ban while she decided whether to block it while the case proceeded.

Last Friday, the Bullock administration forced the issue by announcing it would start enforcing the ban this Wednesday, because the judge’s initial temporary hold had expired. The vape-shop owners responded by asking for an extension of the temporary hold, but then Lint issued her order late Tuesday. State health officials have identified seven cases of vaping-related lung injury in Montana and said Wednesday they are continuing to investigate “multiple potential new” cases.