Vaping Injuries Roil Regulators
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Vaping Injuries Roil Regulators

Brownstein Client Alert, October 7, 2019

With more than 1,000 reported cases in 48 states, government agencies are scrambling to investigate and are advising consumers to avoid e-cigarettes and other vaping products. Even as a new regulatory landscape begins forming in those shifting sands, the long-ranging impacts on the regulated cannabis industry—and vaping products generally—are still unclear. 

What Is Causing the Injuries?

This is still unknown. The Centers for Disease Control and Prevention (CDC), United States Food and Drug Administration (FDA), state and local health departments and other public health partners are investigating a national outbreak of lung injuries associated with vaping or e-cigarette product use.

Vaping works by heating a liquid to produce an aerosol that users inhale into their lungs. The liquid can contain: nicotine, tetrahydrocannabinol (THC), cannabinoid (CBD) oils as well as other substances and additives.

The CDC has reported 1,080 lung injury cases to date in 48 states and one U.S. territory. A total of 19 deaths have been confirmed in 16 states: Alabama, California (2), Delaware, Florida, Georgia, Illinois, Indiana, Kansas (2), Minnesota, Mississippi, Missouri, Nebraska, New Jersey, Oregon (2), Pennsylvania and Virginia. The median age of deceased patients was 49.5 years and ages have ranged from 27 to 71 years.

Patients have reported a history of vaping: either THC, nicotine or something else—and many suffer from a combination of symptoms that look like a form of pneumonia: coughing, trouble breathing, chest pain, extreme fatigue, vomiting and diarrhea. According to the CDC, 70% of patients are male. Approximately 80% of the patients are under the age of 35; 21% of patients are 18 to 20 years old and 16% of patients are under the age of 18.

The latest findings from the investigation into lung injuries associated with vaping suggest products containing THC play a role in the outbreak. Among 578 patients with information on substances used in e-cigarette products in the three months prior to symptom onset, about 78% reported using THC-containing products and 37% reported exclusive use of THC-containing products.

The specific cause is still unknown. No single product or substance has been linked to all lung injury cases.

Why Is This Happening Now?

While there has been a surge in new cases, this is not a new problem. Nor is the outbreak is unique to states that have passed medical or recreational marijuana laws.

Data from the CDC suggest that states with recreational marijuana laws may be seeing fewer lung injury cases. For example, of the 1,080 cases, Alaska, which legalized recreational marijuana in 2014, has had no reports of vaping-related health injuries. Washington and Colorado, states that first passed recreational marijuana laws in 2012, and Nevada have reported one to nine total cases each.

In comparison, Utah, which legalized medical marijuana in 2018, has reported 50-99 cases. Nebraska and Iowa, which have not legalized medical or recreational marijuana, have reported one death and 10 to 49 cases to the CDC. Wisconsin, where all forms of marijuana remain illegal, has reported 50-99 cases. 

Investigators are focusing on contaminants and counterfeit vaping products, particularly those containing THC. Nearly 80% of the 578 patients that the CDC has detailed data on reported using THC-containing vaping products in the months before getting sick.

Initially, investigators in New York and the FDA reported that they found vitamin E acetate in samples of products. Additionally, a recent Washington Post investigation concluded that the illnesses may be linked to black market vaping products, some of which are allegedly cut with the agent.

Mayo Clinic doctors who analyzed the lung tissue samples “did not see significant oil accumulation in the lung.” Their findings were published in a short report in The New England Journal of Medicine, “Pathology of Vaping-Associated Lung Injury.” Doctors reviewed biopsies from 17 patients and determined that the damage to their lungs resembled toxic chemical fume injuries like mustard gas. However, the doctors added that the findings do not necessarily eliminate the possibility that oils may be playing a role in the illnesses.

How Are Cities and States Responding?

The vaping outbreak has led to a variety of federal, state and local responses.  While most states have taken a wait and see approach and are monitoring the outbreak, some states and cities have acted in response. 

New York banned the sale of flavored products, except tobacco and menthol, for 90 days; Michigan issued an emergency ban for six months on the online and retail sale of nicotine vaping prodcts in any flavor except tobacco; and Massachusetts is under a four-month emergency ban on the sale of all e-cigarettes and vaping products, including tobacco flavors and THC. Oregon imposed a six-month ban on all flavored vaping products and on the sale of other sources of additives as they are identified in cases of vaping-related lung injuries or death. Rhode Island has moved to restrict flavoring for the devices. Washington has asked the State Board of Health to enact an emergency ban on the sale of flavored e-cigarettes, including mint and menthol. Cities like San Francisco, Los Angeles, San Diego and Chicago are also taking action. San Francisco was the first city to approve a ban on the sale of all vaping products. Denver is advancing a proposal to raise the legal age to purchase tobacco and vaping products from 18 to 21. 

Meanwhile, the FDA warned the public not to vape THC or purchase any vaping products off the street. Restrictions on vaping could send users back to cigarettes and also put more counterfeit vaping products on the black market leading to more lung injuries.

We will continue to track these issues as they develop.

This document is intended to provide you with general information regarding the CDC, FDA, state and local health departments and other clinical and public health partners investigating a multistate outbreak of lung injury associated with e-cigarette product use. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.

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