Oregon Reacts to the Vaping Illness Outbreak

After 29 deaths and 1,299 reported illnesses related to vaping, Oregon is among many states taking steps to restrict the additives allowed in vaping cartridges. Gov. Kate Brown advised that the “safest option for Oregonians right now is to not use vaping products of any kind,” and the Oregon Health Authority (OHA) and Oregon Liquor Control Commission (OLCC) took action.

Oregon Governor’s Executive Order

On Friday, Oct. 4 Gov. Brown issued Executive Order No. 19-09, which directs state agencies to take action including banning all flavored vaping products. This order came in the wake of last month’s Vaping Illness Guidance released by the OLCC. That guidance instructed cartridge makers to “report any undisclosed additives to the OLCC” so that those products can be removed from sale and prevent any further “dangerous consumption.”

OHA & OLCC’s Temporary Ban

One week later on Oct. 11, the OHA and OLCC filed a tempory ban on the sale of all flavored vaping products to consumers in Oregon, including online. The rules, now in effect, will remain in place for six months. The ban covers all tobacco and cannabis vaping goods that have “natural or artificial flavors including, but not limited to, chocolate, coffee, cocoa, menthol, mint, wintergreen, vanilla, honey, coconut, licorice, nuts, fruit, any candy, dessert, alcoholic or non-alcoholic beverage, herb or spice.” In the future, additional components of vaping products could be banned.

Exempt from the ban are “tobacco-flavored tobacco or nicotine products, as well as marijuana-flavored marijuana or THC products that use only marijuana-derived flavorings, including terpenes.”

Retailers violating the rules will receive a warning letter with recommendations on coming into compliance. If changes aren’t made, the retailer could face civil penalties of up to $500 per day, per violation. Cannabis retailers or processors in violation could even lose their license.

What This Means for Businesses

The cannabis industry has always had to be flexible and adaptable to new legislation and cartridge makers who use cannabis-derived terpenes can breathe a little easier for the moment. But for manufacturers who add flavors to their oil, the changes may cause significant disruption.

Complying with the ban will take more than switching out cannabis-derived terpenes for banned flavors. Flavorings can be used to make tasty vape products out of low-quality cannabis. However, higher-quality cannabis is needed to create quality cannabis-derived terpenes, and that higher-quality input comes at a higher price. Thus, cartridge makers that have been relying on flavorings to flavor oils made from cheap cannabis will face a triple whammy of having to switch their flavor inputs and their labeling, and also having to consider more expensive cannabis inputs.

The OLCC approval for the new cartridges and packaging can take months in some cases and that kind of delay will exacerbate the harm of the ban on businesses. All cartridge manufacturers will be closely watching new labeling requirements and racing to get their labels submitted for approval. Getting a head start on the process now may benefit some makers, but until the details of the new consumer warnings and testing requirements are released there is only so much that can be done.

What is Causing Vaping-related Illnesses & Deaths?

In a September safety alert, the FDA pointed to vitamin E acetate as a likely culprit. According to the alert, many of the vaping products tested contained “significant amounts of Vitamin E acetate.” However, more recent research suggests one or more different contaminants may be to blame. As the FDA notes, identifying the compounds in the tested products will be “one piece of the puzzle but will not necessarily answer questions about causality.” As the CDC and other groups continue to research the cause of the illnesses and deaths, black-market cartridges are emerging and the likely culprit, despite initial reports to the contrary. We are cautiously optimistic that our state-legal processors and retailers will soon have confirmation that the products they produce and sell are safe and consumers will feel safe purchasing products from their local OLCC licensed retail shops. As always, consumers should purchase regulated, tested products from OLCC licensed retail shops. Black market cannabis and cannabis products are not regulated or tested for dangerous pesticides and other chemicals like legal products are.

What’s Next

We are still at an early stage in this process and the industry should pay close attention to what develops in the coming months. Moving forward, interested parties should be aware that the Governor’s order explicitly states the agencies are to create legislative proposals for the permanent ban of all flavored vaping products, the disclosure of all ingredients in vaping products, the increase of regulatory oversight, and the expansion of the OHA’s authority to address these issues. Meaning, this temporary ban may result in permanent changes.

Gleam Law is a full-service transactional cannabis law firm and we are here to guide our clients in these times of regulatory uncertainty and turmoil. Please reach out at (503) 946-9885 or contact@gleamlaw.com to speak to one of our experienced attorneys.