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How Can / Should Regulators Respond to the Vaping Illness Scare?

Posted by on Wednesday, September 25, 2019 in News, Updates.

[Updated 9/27 to reflect new information from the CDC and to add one new observation on the timing of these illnesses.]

In the last few months, doubts have surfaced about the safety of vaping, due to a surge in reports of vaping-linked lung illnesses. The Centers for Disease Control and Prevention (CDC) reports that, as of September 26, there were 805 known cases of vaping-related lung injury from 46 states, including 10 confirmed deaths. See the CDC report here.

Because of a possible link between these illnesses and vaping marijuana (more on that below), this health scare could have a substantial effect on marijuana law and policy.

However, there is as yet no consensus on how best to address the scare. The reason is that health officials still do not know what, exactly, is causing these illnesses.

• It might be THC in e-cigarettes.

The CDC report linked above notes that:

“Most patients have reported a history of using e-cigarette products containing THC. Many patients have reported using THC and nicotine. Some have reported the use of e-cigarette products containing only nicotine.”

The fact that “[m]ost” patients vaped THC suggests that THC is a cause. But the fact that some patients claimed to have vaped only nicotine (or both THC and nicotine) suggests that THC may not be the cause – or that it might not be the only cause – of these illnesses. Of course, it’s possible that all of these patients actually did vape THC but some were just unwilling to admit it; that seems especially plausible if patients live in prohibition states – and several of the 46 states where these illnesses have been reported are prohibition states. We just don’t know yet.

• Even if all of the illnesses are linked to marijuana vaping products, that doesn’t necessarily mean that THC was the cause of the illnesses.

The Washington Post reports here that “many victims report buying marijuana on the street rather than from a store.” Thus, it’s possible that the illnesses are being caused by counterfeit or contaminated THC e-cigarettes. For example, some officials suspect that black market dealers are adding ingredients (like vitamin E) to the THC oils in their e-cigarettes to cut their costs. Perhaps these ingredients – and not THC — are the problem; or perhaps the problem stems from unsafe manufacturing processes used by unregulated black market suppliers. Again, we just don’t know yet.

• Lastly, it’s somewhat puzzling why these illnesses are surfacing now.

After all, vaping has been around for awhile. The first e-cigarettes were introduced in the U.S. back in 2006. So why didn’t vaping-linked illnesses surface earlier?

One possibility is that physicians are only now recognizing the link between these illnesses and vaping. In other words, vaping may have caused illnesses in the past, but no one was reporting them as vaping-linked illnesses.

Another possibility is that something has changed – but what is that something?

Here’s one hypothesis I want to offer: If THC (or something mixed with THC in e-cigarettes) is causing these illnesses, it would not be surprising to see a spike in cases in the last year. That’s because e-cigarettes containing THC have become much more readily available in the last couple of years. After all, many states have only recently legalized marijuana (medical or otherwise). What’s more, there may be a lag between when a state legalizes marijuana and when illnesses would appear. For one thing, there’s a lag between the passage of legalization and when marijuana actually becomes available (legally) to the public (e.g., it takes time for stores to open). And there may be a further lag between when someone starts using e-cigarettes and when these illnesses start to appear.

These are just possibilities. Again, we just don’t know yet.

The Washington Post has a great synopsis of what we know – and don’t know – about vaping-linked illnesses here.

So what are the options for regulators now, in this time of uncertainty? I’ll note three possible regulatory responses here; these are not mutually exclusive (i.e., regulators could pursue all of them, if they so choose), nor are they exhaustive.

1) Inform consumers.

One possibility is to caution the public about the potential risks of vaping. The public may be under-estimating those risks. To be sure, vaping may be safer than smoking (no one is advocating smoking in lieu of vaping), but that doesn’t mean it’s safe in some absolute sense. Informing consumers of the possible risks – without necessarily overstating the dangers (we’re talking 530 cases out of more than 14 million users of e-cigarette products) – lets consumers decide for themselves whether they want to start or continue using e-cigarettes.

The CDC has what seems like a reasonable set of recommendations for consumers (again, in the report linked above):

“-Until we know more, if you are concerned about these specific health risks, CDC recommends that you consider refraining from using e-cigarette or vaping products.

-If you are an adult who used e-cigarettes containing nicotine to quit cigarette smoking, do not return to smoking cigarettes.

-If you have recently used an e-cigarette or vaping product and you have symptoms like those reported in this outbreak see a healthcare provider.

-Regardless of the ongoing investigation:

-Anyone who uses an e-cigarette or vaping product should not buy these products (e.g., e-cigarette or vaping products with THC or CBD oils) off the street, and should not modify or add any substances to these products that are not intended by the manufacturer.

-Youth and young adults should not use e-cigarette products.

-Women who are pregnant should not use e-cigarette products.

-Adults who do not currently use tobacco products should not start using e-cigarette products.”

2) Conduct research.

As noted above, there are a lot of questions surrounding vaping, but few definitive answers. The CDC (along with several states) is gathering more data that should help to answer those open questions. For example, the CDC has helpfully worked with states to create a common definition of vaping-linked illnesses. This definition should help physicians (and state public health authorities) more accurately identify and report cases to the CDC, as well as to gather the information the CDC needs to pinpoint a cause of these illnesses.

3) Ban the sale of e-cigarette products.

A third possibility is to ban the sale of e-cigarette products (THC or otherwise) until authorities figure out what is causing these illnesses. Massachusetts has just taken that step. As reported by the Associated Press here, the state’s governor has issued a temporary (4 month) emergency ban on the sale of all vaping products.

This is the most aggressive regulatory step on my menu of options. It might be justified by the precautionary principle – the notion that regulators should ban something until they are confident they understand the risks associated with it. Also, making the ban temporary should assuage some concerns about overreach. In Massachusetts, for example, four months may give regulators enough time to figure out what’s causing these illnesses, without locking them into banning vaping products forever.

However, this strategy also poses a risk. It may simply drive consumers into the black market. After all, consumers may not be willing to stop using e-cigarettes, even temporarily (and despite the scares in the news). Thus, in response to the state ban, consumers may start buying more vaping products from unlicensed sellers. But as noted above, the black market may be cause of the health problem. If vaping products produced by the regulated marijuana industry turn out to be safe, driving more people to use black market products might exacerbate – not lessen – the health crisis.

A few last items:

• In my book, I note that some legalization states had already banned certain types of marijuana products, even before this latest health scare. See pages 131-133; 462 n.3. For example, some states (like New York) banned marijuana edibles and smokeable marijuana. Like Massachusetts’ (temporary) ban on vaping products, these restrictions are driven by concerns about the safety of these other modes of consumption.

• Not surprisingly, it appears that sales of marijuana vaping products have dropped in the wake of the health scare. See, e.g., this report from MSN.

• Governments are also starting to ban flavored vaping products (see CNBC story here). But it’s important to recognize these the ban on flavored products is not necessarily aimed at (or triggered by) the latest health scare. Rather, the bans on selling flavored e-cigarettes appear designed to deter teenagers from vaping (many of the banned flavors arguably appeal to under-age users). Even if it turns out that vaping doesn’t cause lung illness, it might still make sense to ban flavored e-cigarettes to prevent some teens from starting to use nicotine (or THC) products.

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