Vaping of both THC and nicotine products has soared in popularity over the last several years. In many state-legal marijuana markets, vaping products have seen the fastest growth as new and seasoned consumers alike have been attracted by their convenience and, at least until recently, a perception that vaping is less harmful that smoking flower. But the mysterious vaping illness, which started in the spring as a few isolated cases of illness, has spread through 49 states, sickened over one thousand people, and killed more than a dozen.
Pressure to take action has been mounting for some time and a second death in Oregon last month spurred the Governor’s office to take action. However, the lack of information as to what is actually making people sick has made crafting new rules that have a chance at being effective and yet are still narrow enough to limit damage to Oregon businesses a difficult task.
What We Know About the Illness
Since March 2019, users of vaping products across the country have been afflicted with sudden and acute lung damage that has hospitalized scores of people and lead to a number of deaths. Victims have reported using a wide array of vaping products including THC, nicotine, or both. The illness has shown up in 49 states, many of which have no legal marijuana programs at all. In Oregon, victims reported having purchased and used products from OLCC licensed retailers. It is still unknown if they used other products acquired informally.
The CDC has been working with state health authorities all over the country and has released some preliminary findings, most notably from a study done in Illinois and Wisconsin, which found that over 85% of victims had used THC vapes not purchased through a legal, regulated system. Though the investigation is ongoing, this seems to be the highest correlation between usage patterns and sickness.
Pressure from the Oregon Health Authority
Teen nicotine vaping rates have increased at an alarming speed over the last several years. Both in Oregon and nation-wide, nearly a quarter of all high school students have vaped nicotine in the last 30 days. This massive wave of nicotine addiction has rightly alarmed health advocates who have pointed to the popularity of flavored nicotine vape products as evidence of effective marketing to underage users. As such, the use of flavorings in vape products has been drawn into the center of the political fight over the best policy approach for the crisis. In late September, the Oregon Health Authority issued a recommendation to the Governor’s office that sale of all vaping products in Oregon be banned for six months.
One major concern with the full ban is that it could have pushed users of legal, tested vaping products to instead purchase them on the black market. As recent tests of black market cartridges turned up dangerous levels of cyanide (resulting from pesticide use by unregulated farmers), the risk of turning users away from the regulated market led to a compromise.
The Flavoring Ban
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.
Non-Cannabis Derived Terpenes
Over the last two years, much of Oregon’s now infamous oversupply has been transferred to processors. The resulting THC distillate, the component of vape cartridges that contains the psychoactive compounds from the cannabis plant, can be distilled from just about any marijuana biomass in nearly any condition. Marijuana with mold, poor bag appeal, or just older product that has degraded with time can be “blasted” down to distillate regardless of its quality. This led to a large supply of “crude oil,” or unflavored distillate. In order to monetize this inventory, cartridge manufacturers have developed processes to introduce flavoring additives to distillate, either to mimic the terpene profiles or create unique flavors.
For example, the terpene limonene, which is prominent in many citrusy cannabis strains, can be extracted either from cannabis or from a lemon. Pinene can be gotten from weed or from wood. As it is more cost effective to get these terpenes from non-cannabis sources, much of the cartridge market has moved in that direction as constant price pressure has demanded more cost-effective production methods.
Manufacturer’s Risk Disclosures
Though chemically there is no difference between limonene from a lemon and limonene from cannabis, the manufacturers and sellers of botanically (non-cannabis) derived terpenes often introduce other components into their flavoring blends that act to stabilize the volatile terpenes. As vaping is a relatively new concern, and as federal prohibition makes research difficult, little is known about the effect these blends may have on users when inhaled. Last month, Oregon authorities came into possession of disclosure documents coming from some manufacturers of botanically derived terpenes, stating that they were not suitable for vaping consumption and may cause symptoms similar to those described by victims of the vaping illness. Though many pointed to the fact that these same companies have been marketing these products for exactly that purpose for years, those disclosures no doubt influenced the decision to ban such flavoring additives from legal cannabis vape products.
As part of her executive order, Governor Brown instructed that an emergency advisory committee be convened to address ongoing issues relating to vaping and help establish long term rules to take over after the 180-day ban expires. In addition, the Oregon Liquor Control Commission is in the process of creating an approval process for specific non-cannabis derived terpenes should they be proven safe for vaping use. While there is no doubt that the ban will have significant consequences for the Oregon cannabis industry, including a possible re-shuffle of the deck when it comes to vaping market share, there is a path forward to approve and redeploy many of the products that have been so abruptly excluded from the market.
Of the many frustrations faced throughout this process by regulators, health officials, and policy makers, the lack of access to testing facilities is at the top of the list. Even if authorities are able to get their hands on the cartridges that may be making people sick, there is no clear way to get them tested for various adulterants because the very possession of them by laboratories is a federal crime. Were this an outbreak of listeria in cabbage, federal agencies would have isolated the source, recalled and quarantines suspect product, and issued a massive nationwide awareness campaign, all in a matter of days. Since it involves cannabis however, the CDC has taken months to become meaningfully involved and states have been largely left to fend for themselves and conduct complex epidemiology research for which they are not equipped. As of yet, there are no good policy solutions to this crisis because we know so little about its root cause. Let’s hope that changes before too many more people get sick.