Can Governor Ban Flavored Vaping Products Without Lawmakers? Attorney General Says Yes

MichMash hosts Cheyna Roth and Jake Neher talk about the authority the governor has to ban an entire product in the name of public health.

WDET Digital
WDET Digital

Supporters of the vaping industry in Michigan are threatening legal action over a plan to ban flavored vaping products.

Gov. Gretchen Whitmer recently ordered the Michigan Department is Health and Human Services to issue emergency rules to ban the sale of flavored nicotine vaping products in stores and online.

Critics, especially retailers who sell the products, say it will devastate their bottom line and question whether its legal for the governor to act alone without a law from the state legislature.

But the governor’s administration say its confident it is on sound legal standing — and it has the legal backing of the Michigan attorney general’s office.

Click on the audio player above to hear MichMash hosts Cheyna Roth and Jake Neher talk about the authority the governor has to ban an entire product in the name of public health.

RELATED: Michigan Chief Medical Executive, Attorney General Back Flavored Vaping Ban

Whitmer’s administration views youth vaping as public health emergency.

Whitmer’s move comes comes after Michigan’s Chief Medical Executive Dr. Joneigh Khaldun made a finding that youth vaping constitutes a public health emergency.

Khaldun recently said on WDET’s Detroit Today that youth vaping is a trend that is growing exponentially both nationwide and here in Michigan. She points to respiratory illness landing people in the ICU, as well as some deaths. She says her department is now investigating six cases involving vaping in Michigan.

The governor has already taken action to try to address the problem. In June, Whitmer signed into law bills that ban the sale of vaping to minors, as well as use of e-cigarettes by minors. 

The attorney general’s office backs the ban, both legally and politically.

Michigan Attorney General Dana Nessel is applauding Whitmer’s move to ban flavored vaping products. 

Nessel tells the Detroit News she is pledging her “continued and shared commitment to keeping these products out of the hands of our kids.”

Other than agreeing with the policy and health implications of the ban, Nessel’s office also says it’s within the governor’s authority to issue such a ban without a statute from the Legislature.

In an email, Nessel spokesperson Dan Olsen writes: “Michigan law grants the Department of Health and Human Services broad rulemaking powers to safeguard public health and prevent the spread of diseases, such as lung disease and heart disease. MCL 333.2226(d). Moreover, state agencies may develop and implement emergency rules whenever there is an emergency that endangers public health, safety, or welfare. MCL 24.248.” 

Still, critics question whether the emergency rules that will ban flavored vaping products will hold up in court. 


  • Cheyna Roth
    Cheyna has interned with Michigan Radio and freelanced for WKAR public radio in Lansing. She's also done some online freelancing and worked on documentary films.
  • Jake Neher
    Jake Neher is senior producer for Detroit Today and host of MichMash for 101.9 WDET. He previously reported on the Michigan Legislature for the Michigan Public Radio Network.