Lawmakers debate local nicotine-product prohibitions


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109 points

In what opponents say is part of a larger push this session to pass laws favorable to the tobacco industry, legislators discussed a bill proposal Wednesday that would prevent local governments from regulating nicotine products ingested through devices like electronic cigarettes and vape pens.

The proposal, HB 137, would prohibit local governments and the state Department of Public Health and Human Services from regulating “alternative nicotine products or vapor products” used in devices like e-cigarettes. That prohibition would prevent local governments or state health officials from regulating the sale, manufacture, flavoring, marketing, product display, public exposure to and access to those products. It would also define the nicotine products as separate from tobacco products, though the U.S. Food and Drug Administration classifies the devices used to ingest the nicotine solutions as tobacco products. 

The bill’s sponsor, Rep. Ron Marshall, R-Hamilton, owns a vaping retail chain with his wife, Deanna Marshall. He has also sponsored a bill, HB 106, to prohibit expansion of the Montana Clean Indoor Air Act.

“Writing law should be done in this house, the people’s house,” Marshall told members of the House Human Services Committee during the hearing at the Capitol. 

Opponents said the bill would prevent individual communities from deciding what is best for them, and that enacting the legislation would result in increased use of the addictive flavored nicotine products by young people youth. E-cigarette and vaping product business owners who testified in favor of the bill, however, said the Legislature should adopt one set of rules for businesses so users — many of whom they say have used their products to quit smoking cigarettes — have reliable access.

“Everyone else behind me that owns vape shops, runs vape shops, believes in vape, they share and have the same mission as myself and my family to help the people who everyone has forgot about, the daily smokers,” testified Keith Bowman, part owner and general manager of a group of six e-cigarette vape stores in Montana. 

The proposal comes after the city of Missoula in November became the first in the state to ban the sale of flavored e-cigarettes. Additionally, nearly a dozen counties in the state prohibit the use of vaping products indoors. The Department of Public Health and Human Services also enacted an emergency rule, at the direction of then-Gov. Steve Bullock in 2019, to prohibit sales of flavored e-cigarettes. The state then proposed making that ban permanent before abandoning the idea in August. 

The bill would rescind those local policies. Supporters like Deanna Marshall said Wednesday that those regulations have harmed businesses that sell the products. One supporter of the proposal, Tommie Dobbs, co-owner of a Missoula store, said about three-fourths of her nicotine juice sales come from the flavored solutions that will soon be banned in the city. 

“Losing these juice sales, essentially, will lead us to closing our doors,” she said. “I worry about closing my doors, but not just for myself. I worry about my customers who have been coming in with fear in their eyes about not having their products available to them.”

Opponents testifying Wednesday included medical professionals and representatives of the Montana chapter of the American Academy of Pediatrics and the Association of Montana Public Health Officials. They noted that the federal government had declared use of the products among youth an epidemic and that e-cigarette use makes minors more likely to pick up cigarette smoking later on. In Montana, 30% of high school students reported using e-cigarettes, according to a 2019 survey. That same survey found that daily vaping among high school students increased 263% between 2017 and 2019. 

While using vape or e-cigarette products is considered safer than smoking cigarettes, it’s still an unsafe habit that research suggests is bad for a person’s lungs and heart, according to Johns Hopkins University. E-cigarettes are not approved by the FDA as a smoking-cessation product. 

“I’ve been a physician assistant for over 15 years and practicing in cardiology for several years. And during that time, I saw the devastating effects of tobacco on our Montana patients,” said Heather Heggem, program director for Rocky Mountain College’s Doctor of Medical Science program, in testimony opposing the bill. “Now I’m working in the free student health clinic at Rocky Mountain College and I’m seeing vaping take over as the new addiction, and it’s adversely affecting our youth.” 

Opponents said any measures limiting the ability of local governments to regulate those products would allow companies that manufacture or sell them to increasingly target minors through enticing flavors like candy or mint.

“Some of you in the room may remember the days of flavored bubble gum cigars, and packs of candy cigarettes, and TV and magazine ads, and Joe Camel, and I think we’re going down the same road with our youth with this,” said Rick Duncan, superintendent of Powell County High School, speaking on behalf of the School Administrators of Montana at the hearing. 

In a Wednesday press release, public health groups opposed to the proposal said it was among 20 bills up for consideration this year that would weaken public health and tobacco laws. 

“From the perspective of Big Tobacco, this is dream legislation,” Annie Tegen, with the Campaign for Tobacco Free Kids, said in the release. “It takes away the right of local communities to protect their citizens and lets the tobacco industry and Helena politicians weaken protections supported by Montana citizens.”

The committee didn’t take any action on the bill Wednesday. 

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