[Updated 9\/27 to reflect new information from the CDC and to add one new observation on the timing of these illnesses.]<\/p>\n
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\u00a0805 known cases of vaping-related lung injury from\u00a046 states, including\u00a010 confirmed deaths. See the CDC report here<\/a>.<\/p>\n Because of a possible<\/em> link between these illnesses and vaping marijuana (more on that below), this health scare could have a substantial effect on marijuana law and policy.<\/p>\n However, there is as yet no consensus on how best to address the scare.\u00a0The reason is that health officials still do not know what, exactly, is causing these illnesses.<\/p>\n The CDC report linked above notes that:<\/p>\n \u201cMost 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.\u201d<\/p>\n The fact that \u201c[m]ost\u201d patients vaped THC suggests that THC is a cause. But the fact that some\u00a0patients claimed to have vaped only nicotine (or both THC and nicotine) suggests that THC may not be the cause \u2013 or that it might not be the only cause \u2013 of these illnesses. Of course, it\u2019s 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 \u2013 and several of the 46 states where these illnesses have been reported are prohibition states. We just don\u2019t know yet.<\/p>\n The Washington Post reports here<\/a> that \u201cmany victims report buying marijuana on the street rather than from a store.\u201d Thus, it\u2019s 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\u00a0the THC oils in their e-cigarettes to cut their costs. Perhaps these ingredients \u2013 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\u2019t know yet.<\/p>\n After all, vaping has been around for awhile. The first e-cigarettes were introduced in the U.S. back in 2006. So why\u00a0didn’t vaping-linked illnesses surface earlier?<\/p>\n 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.<\/p>\n Another possibility\u00a0is that something has changed \u2013 but what is that something?<\/p>\n Here’s one hypothesis I want to offer: If<\/em> 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,\u00a0many 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\u00a0actually 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.<\/p>\n These are just possibilities. Again, we just don\u2019t know yet.<\/p>\n The Washington Post has a great synopsis of what we know \u2013 and don\u2019t know \u2013 about vaping-linked illnesses here<\/a>.<\/p>\n So what are the options for regulators now, in this time of uncertainty? I\u2019ll 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.<\/p>\n 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\u2019t mean it\u2019s safe in some absolute sense. Informing consumers of the possible risks \u2013 without necessarily overstating the dangers (we\u2019re talking 530 cases out of more than 14 million users of e-cigarette products) \u2013 lets consumers decide for themselves whether they want to start or continue using e-cigarettes.<\/p>\n The CDC has what seems like a reasonable set of recommendations for consumers (again, in the report linked above):<\/p>\n “-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.<\/p>\n -If you are an adult who used e-cigarettes containing nicotine to quit cigarette smoking, do not return to smoking cigarettes.<\/p>\n -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.<\/p>\n -Regardless of the ongoing investigation:<\/p>\n -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.<\/p>\n -Youth and young adults should not use e-cigarette products.<\/p>\n -Women who are pregnant should not use e-cigarette products.<\/p>\n -Adults who do not currently use tobacco products should not start using e-cigarette products.”<\/p>\n 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.<\/p>\n 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<\/a>, the state\u2019s governor has issued a temporary (4 month) emergency ban on the sale of all vaping products.<\/p>\n This is the most aggressive regulatory step on my menu of options. It might<\/em> be justified by the precautionary principle \u2013 the notion that regulators should ban something until they are confident they understand the risks associated with it. Also, making the ban temporary<\/em> should assuage some concerns about overreach. In Massachusetts, for example, four months may give regulators enough time to figure out what\u2019s causing these illnesses, without locking them into banning vaping products forever.<\/p>\n 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 \u2013 not lessen \u2013 the health crisis.<\/p>\n A few last items:<\/p>\n \u2022 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\u2019 (temporary) ban on vaping products, these restrictions are driven by concerns about the safety of these other modes of consumption.<\/p>\n \u2022 Not surprisingly, it appears that sales of marijuana vaping products have dropped in the wake of the health scare. See, e.g., this report<\/a> from MSN.<\/p>\n\u2022 It might be THC in e-cigarettes.<\/h4>\n
\u2022 Even if all of the illnesses are linked to marijuana vaping products, that doesn\u2019t necessarily mean that THC was the cause of the illnesses.<\/h4>\n
\u2022 Lastly, it\u2019s somewhat puzzling why these illnesses are surfacing now.<\/h4>\n
1) Inform consumers.<\/h4>\n
2) Conduct research.<\/h4>\n
3) Ban the sale of e-cigarette products.<\/h4>\n