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Vaping cases highlight Minnesota governor’s lack of power to address health emergencies

In Minnesota, where there has been 50 confirmed cases of vaping-related lung damage and at least one death, Gov. Tim Walz’s authority is essentially limited to shouting, “Don’t!” 

vaping
Unlike in other states, Minnesota’s executive lacks any legal authority to declare a health emergency, or to take action to stop distribution of vaping products, even those that might be aimed at kids.
REUTERS/Neil Hall

Massachusetts has announced a four-month ban on sale of all e-cigarettes as part of its emergency response to deaths linked to the devices. New York, Rhode Island and Washington all declared health emergencies and have moved to ban flavored products used in vaping devices, and the Trump Administration is considering a similar federal ban as well.

Yet in Minnesota, with 50 confirmed cases of vaping-related lung damage and at least one death — and with the release of data showing that one in four high school students have vaped in the past 30 days — Gov. Tim Walz’s power is essentially limited to shouting, “Don’t!” 

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Unlike in other states, Minnesota’s executive lacks any legal authority to declare a health emergency, or to take action to stop distribution of vaping products, even those that might be aimed at kids.

“What happens if we start seeing dozens of these everyday, these lung injuries, what can we do?” Walz said he asked his lawyers. 

The answer? Not much.

No inherent power to act

Federal health officials have counted 805 cases of lung injuries and 13 deaths across the country related to vaping so far. The cause is unclear but suspicions have focused on injuries related to inhaling chemicals into the lungs. 

Ironically, it’s a Minnesota statute passed in the wake of the 9/11 terrorist attack makes it harder for Walz to establish that a governor has such authority. That law, The Minnesota Emergency Health Powers Act, authorized the governor to respond to bioterrorism incidents and to declare public health emergencies, which could be interpreted to cover the vaping situation.

Gov. Tim Walz: “I asked right away: Can I just go ahead and do a ban like Michigan did? And the answer is no.”
MinnPost photo by Peter Callaghan
Gov. Tim Walz: “I asked right away: Can I just go ahead and do a ban like Michigan did? And the answer is no.”
That statute, however, ended in 2005. And because the Legislature granted — and then subsequently removed — the authority, Walz’s lawyers have told him it would be difficult to assert that he has inherent power to act.

And while state law gives the governor the ability to declare certain public health nuisances, Walz was told it would be a stretch for him to try and stop the sale of  products in hundreds of retail outlets around the state as well as online. 

“I asked right away: Can I just go ahead and do a ban like Michigan did? And the answer is no,” Walz said Wednesday. 

“This extends beyond vaping,” he said of his lack of authority. “This extends to other health emergencies that our hands are somewhat tied to act in a rapid manner to act in the best interests of the people. I’m not asking them to give me blanket executive authority, we know how dangerous that can be if it is handled incorrectly.

“The concerns on making sure there’s not an abuse of executive powers is one thing.  But this is a crisis for our kids.”

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In lieu of any real power, Walz was left to stand with his health commissioner and education commissioner to try to spread the word that vaping is dangerous. He also said he hopes to work with state legislators on bills to ban vaping products using flavors and to take another run at a law that would raise the age to purchase tobacco products to 21. 

Survey shows rise in teen usage

The Minnesota Student Survey is conducted every three years and has 170,000 participants in 80 percent of state school districts. While the bulk of the results will be released later in October, Health Commissioner Jan Malcolm said Wednesday she wanted to release the vaping results now because of the emergency they demonstrate. Three years ago, 17.1 percent of 11th graders reported to have vaped in the previous 30 days; the new results found that number increased to 26.4 percent. The survey also found that 11.1 percent of eighth graders and 16.3 percent of 9th graders reported vaping at least once in the past month. 

Walz said the most-concerning result was the 76 percent of 11th graders who said there was either no risk, a slight risk or a moderate risk in using e-cigarettes and other vaping products. The survey was conducted last spring, before lung injuries tied to vaping became big news. 

Walz and Malcolm both put the blame on “big tobacco” for pushing vaping as a healthier alternative to traditional smoking. “They are the fault of this, they have created this, and they will continue to try and create that … we need to do everything in our ability, as adults, as parents and as those trusted role models, to get them the information,” Walz said.

Health Commissioner Jan Malcolm said Wednesday she wanted to release the vaping results now because of the emergency they demonstrate.
MinnPost photo by Peter Callaghan
Health Commissioner Jan Malcolm said Wednesday she wanted to release the vaping results now because of the emergency they demonstrate.
But for Walz, “everything” right now is limited to a public information campaign, working with school districts and school nurses to get the word out while his administration starts “thinking about policy proposals.”

Malcolm said the investigation of the lung injuries appears to be pointing to vaping of products containing THC and to such products are that are illegal, not those related to medical marijuana.

“In the Minnesota cases that we have been able to directly interview, we do see this strong correlation with illicit THC,” Malcolm said. 

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The same interviews have shown that they are not regulated products but are illicit. Malcolm said the same is true of the majority of the cases nationally. “But we still can’t say it is THC and only THC,” she said. “There is a strong correlation but this is a very complicated investigation nationally and it’s gonna take some time and it may be that there’s not a single cause but a constellation of causes.”

Malcolm cited another survey, the 2017 youth tobacco survey, that reported that one in three high school students who reported using e-cigarettes also tried the devices with THC.