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Legislature eyes reversal of Missoula’s ban on flavored vaping; receives praise, criticism

Vaping
Posted at 11:52 AM, Jan 14, 2021
and last updated 2021-01-14 13:52:36-05

MISSOULA — A House bill heard in committee this week would limit local control on alternative nicotine and vapor products, retroactively canceling Missoula’s flavored vape ban passed by the Missoula City Council last November.

House Bill 137, sponsored by Rep. Ron Marshall, R-Hamilton, aims to amend the State of Montana’s Youth Access to Tobacco Act by clarifying that alternative nicotine products are separate from tobacco products.

It would also prevent and stop any regulation on nicotine and vapor products by local governments, health boards and the Montana Department of Public Health and Human Services – an agency that attempted to eliminate the sale of flavored e-cigarettes last summer.

“It needs to be addressed,” said Marshall, who was part of a trade association who unsuccessfully sued over former Gov. Steve Bullock’s 120-day flavored e-cigarettes ban as co-owner of Freedom Vapes in Belgrade, Bozeman and Hamilton.

“There’s a lot of holes, and 56 counties in Montana means 56 different sets of rules. Everything should go through the legislative body when it comes to law. It’s just one of those things where everybody needs to be on the same page, and we need to have a clear definition of what these products are.”

Marshall said that HB 137 has been coming for a long time, and with COVID-19, laws restricting alternative nicotine products cause substantial damage to a retailer’s revenue earnings.

“Right now, with the climate out there with COVID and lost jobs and businesses and all that, coming up with another attempt to shut down more business or curtail more business is the wrong answer,” Marshall said. “You’re not only doing that, but you’re also taking away revenue. And that’s revenue that not only goes to the cities and counties, but to the state. Let’s back up and look at the big picture.”

When the Missoula City Council was discussing its flavored vape ban, City Attorney Jim Nugent said it would likely face a lawsuit as it was written at the time. Council members made changes to the ordinance to strengthen it against any legal challenge.

The city’s flavored vape ban will go into effect on Jan. 25, and Missoula County may use its extraterritorial powers to extend the ordinance five miles beyond city limits.

Nugent said the city hasn’t faced a lawsuit regarding the ordinance, and with the final section of HB 137 stating that the bill would apply retroactively, the city likely won’t face a lawsuit. Nugent said the retroactive portion of the bill is aimed at Missoula.

“Instead of a lawsuit, it is now being challenged through the Legislature,” Nugent said.

Councilmember Gwen Jones, one of the five sponsors of the ordinance, said in a statement to the Missoula Current that she hopes the legislature lets the ordinance stand.

“[. . .] Tobacco use among youth had reached low levels in the last couple of decades, after years and years of tobacco education and work by advocates,” Jones said. “Then in the last decade, as flavored tobacco in vaping products took hold as a new product, youth tobacco use through vaping products has again skyrocketed.

“Our ordinance makes it harder for Missoula youth to obtain this product, and that is the bottom line. Missoula youth should not be getting addicted to nicotine products. As a community, we need to do what we can to prevent this.”

Councilmember Jesse Ramos was one of the four council members who voted against the ban. He lauded the Legislature’s proposed action against the ordinance.

“I think it’s important to understand what the role of government is, and the role of government is essentially to be a referee and to be a player in the game,” Ramos said. “People think that the government can just fix everything in a ban, but this stuff has to come from the home, it has to come from social circles, it has to come from teachers, people that the students hold in high regard, not just making something illegal in Missoula.”

Marshall is also a sponsor of House Bill 105, which bolsters punishments for selling and or giving tobacco products, alternative nicotine products or vapor products to children. He said that alongside HB 137, the bills go “hand-in-hand.”

“There are laws that need to be put in place and we’re working on that as well as trying to keep it away from children,” Marshall said. “Cut the source. The supply source often is where kids are getting hold of this stuff and they shouldn’t be getting a hold of it.”