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Bill to stop local governments from enacting vaping ordinances dies in Senate

An attempt by the Legislature to stop local governments from enacting ordinances to ban the sale of flavored vaping products was shot down by the Montana Senate on Tuesday.

Senate Bill 398, from Sen. Jason Ellsworth, a Hamilton Republican, was voted down on a second reading by a 21-29 margin. It was then indefinitely postponed on a 31-18 vote.

In opposition to the bill, Sen. Carlie Boland, D-Great Falls, said the state is dealing with a vaping epidemic and that companies make flavors to target children. Boland said taking away the ability to enact regulations to counter vaping among children was harmful.

"It has to be a community working together to achieve this. We need to address this problem and it should start at our homes and at the local level," Boland said.

The 2019 Montana Youth Risk Behavior Survey shows that 58.3% of students had vaped, and nearly 19% had vaped on school property in the 30 days prior to the survey.

Ellsworth argued vaping products are legal and their sale should not be restricted. He also said owners of vape shops testified that local ordinances dramatically hurt their businesses and that shops aren't allowed to sell to underage minors.

"We should not be enacting laws on a local level. Just think about that for a second. We've seen that happen. We've seen how that has had repercussions and we've had to come back here as a body to rein in these local governments trying to restrict our freedoms," Ellsworth said.

Earlier this session, Rep. Ron Marshall, R-Hamilton, brought a bill that would have barred a local government or the state Department of Public Health and Human Services from creating or continuing a regulation, ordinance or restriction related to vaping products. That bill passed the House in February but later was voted down in the Senate Business, Labor and Economic Affairs Committee. Marshall is a co-owner of a vaping shop.

The idea of banning flavored vaping products has been a flashpoint in recent years.

At the state level, the Montana Department of Public Health and Human Services proposed to ban flavored vaping products in 2020 over concern that flavors targeted children. Ellsworth was a leader in a push from GOP lawmakers to oppose the ban, which the department eventually dropped.

Missoula had passed a ban on flavored vaping products, but delayed enforcement until May after it was sued.

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