How Quickly Will State Cannabis Regulators Respond to the THC & CBD Vape Product Illnesses?

The CDC and FDA are working with state governments to investigate the cause of 450 cased of lung illnesses in 33 states that have resulted in five deaths to date. The CDC indicates that many of the persons with the mystery lung illnesses used vaping products that contain THC or CBD.

The FDA released a statement warning consumers to avoid vape products that contain THC until the cause of the illnesses has been clearly identified. The FDA indicated that many of the products contained Vitamin E acetate, which is used in topical products with limited research on the effects of inhalation.

The health departments in many states including California, Colorado, Connecticut, Ilinois, Indiana, Michigan, Minnesota, New York, Oregon, Washington, and Wisconsin issued warnings to residents and offered tips on how to avoid becoming ill. The common themes on how to keep safe across the states and the FDA include:

  • Don’t buy THC or CBD vaping products off of the street;

  • Avoid THC vaping products until the investigation is concluded; and

  • Don’t make your own vape products.

The tremendous concern around public safety at the state level may ultimately reverberate into additional regulations directly targeted at vaping products. As THC and CBD products are, for now, governed by state law, the question is how quickly will the state regulators respond to these health concerns and how draconian will the regulatory response be.

The FDA’s Acting Commission, Ned Sharpless M.D., issued a statement in July on its efforts to regulate the e-cigarette market including the issuance of recommendations that require manufacturers to consider factors when designing an e-cigarette including how the e-liquid is heated, the aerosol is generated and transmitted to the user.

We would expect the state cannabis regulators to lean heavily on the FDA’s recommendations for e-cigarettes in future rulemaking initiatives due to the FDA’s expertise in understanding the risks associated with e-cigarettes and the regulations that can keep the public safe.

We also see a heavy focus on testing recently with recalls in Colorado and Michigan. Last week, Michigan recalled four vaping products that tested positive for heavy metals and arsenic. State regulators will most likely amend testing requirements after the cause of the vaping illnesses is determined.

Cannabis and CBD vaping product brands should review their manufacturing and purchasing processes to ensure there are strong controls to identify and prevent unsafe products. Manufacturing processes, including recipes, should be reviewed for ingredients that are not typically in vaping products. Companies should also pay close attention to the quality of hardware provided by third-party providers and whether they meet the FDA’s recommendations for e-cigarettes.

Most importantly, the industry should be concerned about public safety issues and proactively take a deeper look at non-vaping products. CBD product manufacturers should be especially diligent as CBD is not subject to the same rigorous testing standards as cannabis.

The industry is at a pivotal point. State regulators must show the federal government that it has the expertise and enforcement mechanisms to produce safe products. We believe that the current vaping crises will further entrench the state product silos, and it may ultimately prevent CBD products from being offered outside of a state-regulated cannabis framework.

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