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Flawed Marijuana Regulations Highlighted By Vaping Injuries

  • September 23, 2019
  • KBA Attorneys
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In light of the spate of mysterious illnesses seemingly connected to vaping that have appeared over the summer months, Dr. Diana Martins-Welch finds herself telling medical marijuana patients to smoke a joint instead of vaping cannabis. The cancer-care expert admits, “I would never have thought I’d be in a position to tell someone to smoke marijuana. But, if the choice is between smoking and vaping, smoke marijuana.”

The New York state physician cares for patients with cancer and chronic pain. She has helped more than 700 of them get certified to use marijuana under her state’s tightly controlled cannabis program that allows patients to use vaping extracts with THC, the marijuana component that produces a high. Marijuana cigarettes are banned, however.

Martins-Welch now has grave concerns about the safety of e-cigarette products following a national outbreak of serious respiratory illnesses possibly linked to vaping marijuana and nicotine. During the second week of September, the Centers for Disease Control reported 380 confirmed and probable cases and six deaths. No single product or substance has been pinpointed, but the leading suspect is chemical exposure.

As a palliative care attending physician at Northwell Health in New Hyde Park, Dr. Martins-Welch says, “I tell them vape at your own risk, because we just can’t trust this mechanism.” She believes the risk is so great that she even tells her Stage 4 cancer patients to stay away from vaping and choose another way to consume marijuana, even though they may have only a few months to live. “All of this is buyer beware, because it doesn’t have FDA approval.”

Nationwide, there is growing concern stemming from the illness outbreak. One concern is that no federal regulation of marijuana products exists because its sale, possession, and use is federally banned. To the federal government, marijuana is a Schedule 1 drug considered to be on par with LSD and heroin.

The FDA’s Role in Regulation

Eleven states have ruled marijuana legal for recreational use by individuals of legal age, and each of these states has its own separate set of rules. For example, Colorado has different rules governing marijuana use than Alaska has. California’s rules are different than Nevada’s, and so on. There are now 33 states that allow marijuana to be used for medicinal purposes, and each of them has adopted different rules.

Colorado will soon begin requiring testing to detect the presence of potentially harmful mycotoxins produced on plants by fungal infections. The step is being put into action four years after pot became legal in the state. California performs the same testing and has done so since late 2018 but is conducted differently.

Each state has its own idea of what the rules should be. Legal marijuana products are not permitted to be sold across state lines, so even a product sold under the same brand name in two different states must be manufactured to meet the exact standards of the state in which it will be sold. Remarkably, because THC vaping cartridges have no federal regulation, and only have individual state regulations, the devices have less federal scrutiny than cosmetic colorings or Advil.

In a CNBC interview, former head of the Food & Drug Administration Dr. Scott Gottlieb said that he thinks federal intervention is necessary. According to his “Squawk Box” interview, “People who are vaping nicotine and having these reactions probably are vaping illegal products that are counterfeit. We have to have a federal reckoning here.”

Vaping Product Chemicals

The FDA is examining whether the vape-juice thickener, vitamin E acetate, could have been involved in serious respiratory illnesses and deaths that have occurred. A September 6 statement from the agency stated, “Because consumers cannot be sure whether any THC vaping products may contain vitamin E acetate, consumers are urged to avoid buying vaping products on the street, and to refrain from using THC oil or modifying/adding any substances to products purchased in stores.”

The Centers for Disease Control and Prevention is calling for a broader halt to any and all e-cigarette use, including THC and nicotine. However, the owners of marijuana vaping companies feel that alarmist media and government regulators are unfairly maligning them by failing to differentiate between black-market products and state-licensed legal products.

According to Arnaud Dumas de Rauly, the CEO of vaping device manufacturer The Blinc Group, “We’re throwing vaping in general under the bus here. We need to distinguish between nicotine and cannabis and the black market. It’s funny how all of the anti-vaping crowd has jumped on this. When you look at the data, it is clearly black-market illegal products.”

Individuals can purchase nicotine extract in bulk online and mix it with additives, flavors, and thickeners, virtually making nicotine vape “juice,” then sell it to consumers in stores or online. In making cannabis vape juice, THC must be extracted from marijuana using something like carbon dioxide or liquid butane, then the THC must be dissolved into a liquid. This requires additives such as vitamin E acetate or propylene glycol.

State regulators require legal cannabis vape manufacturers to submit either the extract itself or the raw plants for contamination and quality testing, thus raising the price considerably compared to black-market products. Black-market cannabis vape juice may be up to seven times less expensive than legal and tested products.

Vaping Regulations Needed?

The federal government lists marijuana as a Schedule 1 controlled substance, so FDA scientists refuse to help states develop their individual piecemeal requirements for marijuana testing. The recent barrage of serious respiratory illnesses has prompted anti-marijuana campaigners to call for shutting down the vaping market.

The executive director of Smart Approaches to Marijuana Kevin Sabet notes, “The marijuana vaping crisis is real and poses a significant threat to both physical and mental health. For years, companies like Altria and other major tobacco and e-cigarette brands have demonstrated a willingness to lie to the public about the safety of these products, aggressively marketing these devices as safe, healthy alternatives to traditional smoking. He continued in a statement, “If this crisis does not convince lawmakers at a state and federal level that today’s high-potency, industrialized marijuana is dangerous, I don’t know what will.”

Dr. Martins-Welch feels the federal government’s expertise would be useful in this dilemma. She believes more research on cannabis, to include vaping products, could help physicians like her make better informed recommendations to those in their medical care.

File a Vaping Illness Lawsuit

If you have suffered lung problems due to vaping with nicotine or marijuana, contact the e-cigarette lawyers at KBA Attorneys. Our legal team has years of experience in handling product liability cases where innocent consumers have been wrongfully harmed by a negligent company’s dangerous product. 


Trevor Hughes. “Pick up a joint instead: Vaping illnesses highlight flawed marijuana regulations”, USA Today, https://www.usatoday.com/story/news/nation/2019/09/13/vaping-illness-deaths-spark-call-regulation-marijuana-products/2301489001/. Accessed September 15, 2019.