Vaping Illness, or lung damage due to consuming THC and nicotine vaping products, exploded into the headlines and forced states and, in some instances, local jurisdictions, to take swift action to clamp down on the availability of vape products. Much action was taken without the benefit of conclusive evidence as to the cause of the illness. We are now seeing some of that action challenged.

As we discussed in detail last month, on October 4th, Governor Brown issued Executive Order 19-09, directing state agencies to ban sales of all flavored vaping products, including both those with THC and those with nicotine, for 180 days. After a week of emergency rule making, the OLCC released its emergency rule in accordance with the Governor’s directive, and immediately banned sale of all vaping products with any flavoring other than terpenes (the naturally occurring essential oils that give cannabis its smell and taste) derived from cannabis.

Now, both the nicotine and cannabis related bans are on hold. In this article we will delve into the temporary downfall of the flavored cannabis vaping products ban.

A Dual-Pronged Challenge to the Ban on Flavored Cannabis Vaping Products

A Petition for Judicial Review

Following a successful challenge of Oregon’s ban on flavored nicotine vaping products, Portland litigators at Green Light Law Group filed a petition for judicial review of the OLCC rule banning the favoring additives. The OLCC rule followed the Governor’s order. The petition asserts that the OLCC failed to follow the required rulemaking process and is thus invalid. This petition has not been reviewed yet but provided the basis for the motion to stay enforcement of the rule.

A Motion to Stay Enforcement

The second prong of the attack was a motion to stay enforcement of the OLCC rule, pending a decision on the petition challenging the rule. The motion claimed the named plaintiff would suffer irreparable harm under the ban and, thus, the ban must be stayed unless and until the OLCC wins its defense of the petition. The result is that, pending a decision on the petition, Oregon recreational marijuana businesses can resume the manufacture and sale of cannabis vaping products flavored with botanically-derived terpenes and other flavoring additives.

What the Research Says Now

Since the ban was imposed, new research has confirmed our suspicions that additives in illegal vaping products are causing the vaping illnesses. Specifically, the Center for Disease Control has tied vitamin E acetate to vaping illness. Vitamin E acetate is added to illegal vape oil cartridges as an additive and, while perfectly safe in many common products, causes lung damage when inhaled. Vitamin E acetate is not present in legal Oregon vape products and the OLCC formally banned it as an additive. The CDC continues to investigate other substances in vape products. Meanwhile, their current recommendation to the public is to avoid vape products from “informal sources” and not add any after-market substances to vaping products, not to avoid legal recreational cannabis vape products.

Looking Forward/Conclusion

Now that is seems unlikely that flavoring additives used in legal vaping products are to be implicated in any illnesses or deaths, how hard will Oregon fight to enforce the ban? Hopefully not very hard at all. As discussed last month, flavored vaping products have come under scrutiny for attracting children and teens. The blame for this arguably lies squarely on nicotine vaping companies, whose ads often specifically target potential users under the legal age of consumption. Tighter restrictions on marketing by Oregon recreational cannabis companies means that legal recreational cannabis products in the state are not marketed to children. However, there is a risk that the state will decide to use the vaping illnesses to address this issue and pull cannabis vaping products into the fight.

Absent new evidence implicating legal recreational cannabis products in vaping illnesses, which seems highly unlikely at this point, efforts to restrict legal vaping products would be counterproductive.

While a ban on flavored nicotine products would likely decrease the number of children and teens picking up vaping, attacks on the legal cannabis industry are likely to have the opposite effect. The still-booming illegal cannabis market makes obtaining cannabis products from black-market sources easy for Oregon’s youth. And the more difficult the state makes it for legal recreational marijuana companies, who do not sell to minors, to compete with the black-market players, the more those bad players will thrive and the more accessible their products will be. Rather than seeking to defend restrictions on legal vaping products, the state’s efforts and resources can be better utilized to improve public health and safety by clamping down on black market cannabis products.