Montana Bans Sale of Flavored THC, CBD and Nicotine E-Cigarettes

The Montana Department of Health announced that it will enforce a temporary ban on the sale of flavored THC, CBD and nicotine e-cigarettes starting Wednesday, December 18, 2019. The restrictions apply to all in-store and online sales. The state is acting after the expiration of a temporary restraining order that was entered in October.  The emergency rules will expire on February 19, 2020.

Montana indicated that five (5) additional residents in the state suffered vaping lung injuries during the time that the restraining order was in effect. The DPPHS continues to investigate multiple cases. The regulator will use inspections and citizen complaints to enforce the retail ban on flavored e-cigarettes. Penalties for violating this rule include up to 90 days in jail and a fine of up to $500 per violation.  

The emergency regulations require retailers to pull flavored THC, CBD and nicotine e-cigarettes, including menthol, from the shelves. The sale, online sale, and transport of flavored e-cigarette products is prohibited. Retailers are not required to destroy the products at this time.

Last week the Food and Drug Administration issued seven (7) warning letters to vape brands for selling e-cigarettes to minors. During the FDA’s investigation, a person who was younger than 18 purchased e-cigarettes from online retailers. The FDA also found that the products lacked the required warning labels. The FDA sent a copy of the warning letters to the brand’s online retail platform and internet service provider.

The regulator’s focus on online sales and the use of minors in decoy operations raises the regulatory risk for online retail platforms. To reduce this risk, online retailers should require brands to prove that they are complying with the marketing, labeling and sales requirements in every state where a product is sold and shipped.  It is a matter of time before a regulator uses its enforcement arm to make sure this happens.