Cannabis Industry: More Regs Will Help Address Vaping Crisis

By | October 10, 2019

In the midst of a vaping crisis that has gripped the nation’s cannabis industry what is needed most right are more regulations.

Believe it or not, that was a message from the industry itself.

A group of expert panelists speaking at the National Cannabis Industry Association’s California Cannabis Business Conference on Wednesday in Long Beach, Calif., called on the industry to push for better regulations of cannabis products to help the government and consumers to recognize the legitimacy and value of cannabis.

The NCIA event was held on Tuesday and Wednesday. It included talks on agriculture, retail, marketing and delivery, as well as several public policy panels. It also included numerous exhibitors, including eight brokerages looking to drum up business from cannabis firms.

The panel, titled The Road Ahead: Public Policy Priorities Post-SAFE Banking and Public Safety Issues, featured Andrew Kline, director of public policy for NCIA, Khurshid Khoja, founder of Greenbridge Corporate Counsel, Steve Hawkins, executive director of the Marijuana Policy Project, and Bryant Godfrey, counsel with Arnold & Porter Kaye Scholer LLP.

Kline, who moderated the panel, kicked things off by acknowledging the recent outbreak of more than 1,000 document lung injures and 23 deaths related to vaping.

To make matters worse for the industry, the Mayo Clinic in a recent study published in the New England Journal of Medicine reported the results of 17 biopsies of patients that who had vaped, and 71% had vaped with marijuana or cannabis oils.

Not all of the products involved may have been sold legally. Along with the news of vaping-related illnesses has come no shortage of news about illegal sales of vaping equipment and products.

Two brothers were arrested in September after being accused of running a drug empire in Wisconsin. Authorities seized THC vaping products that had a street value of $1.5 million. They found more than 31,000 filled and ready to be shipped in the home of the brothers.

Kline said the best way to address concerns about cannabis is to remove it from the federal government’s list of Schedule I drugs on the Controlled Substances Act, which includes heroine and LSD, and to push for uniform regulations and product testing throughout the nation.

“We have a public health crisis on our hands and we firmly believe the answer is to deschedule, and regulate and test,” Kline said.

A number of state and local governments have been quick to take action following the vaping illness outbreak.

Massachusetts quickly enacted a four-month ban on the sale of vaping products, a decision that earlier this week was upheld by a U.S. District judge.

Rhode Island health officials this week issued emergency health regulations to ban the sale of flavored vaping products in the state. A ban was set to go into effect in New York, when a court last week temporarily halted a state ban on the sale of flavored e-cigarettes.

“We’ve seen some states take pretty drastic action,” Khoja said.

Some states where cannabis has long been legal in some form have yet to take action. Oregon has been free from bans, despite a recent report that health officials say one more Oregonian has a vaping-related severe lung illness, raising Oregon’s toll to nine victims, two of whom have died.

And there has yet to be a ban in California, a state that has been quick to ban things like plastic straws and bags.

“In California we haven’t seen any throwing out the baby with the bathwater – yet – thankfully,” Khoja said.

Hawkins said the cannabis industry’s response to the vaping crisis so far has been “challenged,” and that a more progressive response was needed earlier on.

“It will probably get worse before it gets better,” Hawkins added.

All four panelists agreed the message that must be delivered now is that regulations and a quality control are important to the industry.

“(We need to) try to turn this crisis into a moment of opportunity,” Hawkins said.

The NCIA recently put out a white paper, ADAPTING A REGULATORY FRAMEWORK FOR THE EMERGING CANNABIS INDUSTRY, outlining approaches that the federal government could adopt to regulate cannabis products “after the last vestiges of federal prohibition are removed.”

The paper largely addresses regulations.

“Currently, because of marijuana’s status as a Schedule I drug under the CSA, the Drug Enforcement Administration (DEA) is the primary federal regulator of cannabis, with criminal enforcement serving as the sole regulatory tool for the law enforcement agency,” the paper states. “The first and most important step of a comprehensive regulatory system for cannabis would be for Congress to remove marijuana and its derivatives, including delta-9 tetrahydrocannabinol (THC), from the CSA, otherwise known as ‘descheduling.'”

The paper argues that descheduling is “the only way to truly reform federal cannabis policy in a sensible manner.”

The paper proposes that cannabis products, like other highly regulated consumables, be regulated by the government agencies that currently regulate most food and drugs, primarily the Food and Drug Administration and the Alcohol and Tobacco Tax and Trade Bureau within the U.S. Department of the Treasury.

The plan calls for cannabis products to be divided into four categories, based on chemical components, safety, intended use and consumption method.

Each of these groups would be regulated through a separate regulatory “lane” tailored to the public policy issues raised by that particular classification.

The four lanes are:

  1. Pharmaceutical drugs;
  2. Ingested, inhaled, or topically applied products with more than de minimis amounts (less than 0.3%) of THC;
  3. Ingested and inhaled products with de minimis amounts of THC;
  4. Topically applied products with de minimis amounts of THC.

An important first step, Kline said, is to make cannabis legal.

“We want to take the authority from the DEA,” he said, adding that oversight should be moved to the FDA because it’s a public health issue and not a law enforcement issue.

Despite federal government resistance, Hawkins said momentum for legalization continues to gain steam one state at a time. In addition to 11 states where adult-use is legal, there are 33 states that have laws enabling medical marijuana use. And more may be on the way.

He said to expect ballot initiatives in at least five states legalizing cannabis in some form for the 2020 elections.

“We’re getting to a point now where the political momentum is surpassing our resources,” Hawkins said.

This is among the reasons why, Khoja said, uniform regulations are needed nationally.

“If we ever want to develop a national industry, we need to develop truly harmonized standards,” Khoja said.

Panelists surprisingly spent little time talking about the Secure and Fair Enforcement Banking Act, H.R. 1595, despite the SAFE Banking Act being included in the name of the panel.

They did say that passage of the act in the House is an encouraging step. The U.S. House of Representatives in late September voted 321-103 to pass H.R. 1595. The vote wasn’t entirely partisan, with 91 Republicans joining 230 Democrats, but it was enough to give some analysts hope that it sets the stage for likely passage in the Senate.

Khoja said if the act were to pass Senate and get signed into law, that could free up capital resources, which are now limited, and help industry expansion.

“It would essentially free up capital for the entire industry,” Khoja said.

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