On September 27, 2019, Washington State Governor Inslee issued Executive Order 19-03, directing the Liquor and Cannabis Board (“LCB”) and Department of Health (“DOH”) to immediately take actions to protect public health from the alleged dangers of vaping, including an emergency rule to ban flavored vaping products.
- About the Flavor Vape Ban
- Identifying the Problem
- Adapting Products for Safe Consumption
- What this means for Vaping Products and Businesses
About the Flavor Vape Ban
As expected, the Washington State Board of Health (“BOH”) adopted emergency rules on October 9, 2019 to ban flavored vapor products, including marijuana products, effective October 10, 2019. WAC 246-80-010(5) defines a “Flavored vapor product” as any vapor product that imparts a characterizing flavor, and WAC 246-80-010(3) defines a “Characterizing flavor” as:
A distinguishable taste or aroma, or both, other than the taste or aroma of tobacco or marijuana or a taste or aroma derived from compounds or derivatives such as terpenes or terpenoids derived directly and solely from marijuana, as defined in RCW 69.50.101(y), or hemp plants that have been grown and tested as required by state law, imparted by a vapor product. Characterizing flavors include, but are not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A vapor product does not have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. It is the presence of a distinguishable taste or aroma, or both, that constitutes a characterizing flavor. (Emphasis added)
Identifying the Problem
It is this last provision that gives rise to concerns because it is not solely an additive that gives a vapor product a characterizing flavor, it is merely the presence of those flavors, so arguably a naturally derived marijuana product that exhibits a characterizing flavor may run afoul of this rule. Quite simply, marijuana strains that exhibit a characterizing flavor, without additives, may be banned under this rule.
Aside from the ambiguous and subjective nature of the emergency rules, we’re critical of underlying rationale relied upon by Governor Inslee in issuing his executive order. Specifically, Governor Inslee stated in his press conference on September 27, 2019 when he signed the executive order that:
Experts have not yet identified the specific chemical that is specifically causing the physiological reaction that have caused this [severe lung disease] problem, but we know that there is an action causing this problem and that is the predatory marketing by this industry to our children intentionally trying to addict them to various products, and using flavoring to do so. These kids get hooked, and they get hooked for life … These flavors exist for one reason, and one reason only, and that is to make them more appealing to young children … Now, we do not have evidence at the moment that the flavoring chemistry itself is the reason for the disease, but it is the reason for the disease because it is hooking our children on the product in the first place. (Emphasis added)
Adapting Vaping Products for Safe Consumption
There is little argument that there is not a vaping crisis—although it pales in comparison to the ongoing opioid crisis and is insignificant when compared to the illnesses and deaths linked to smoking and alcohol use—but it is deplorable that Governor Inslee has used youth addiction as the basis for the executive order. Of course, nobody desires for children and youth to use or have access to tobacco or marijuana products, but it is ignorant to believe that flavors such as “bubblegum, raspberry, cinnamon, and the like” are crafted for the sole purpose of being appealing to children.
What this means for Vaping Products and Businesses
Unfortunately, the BOH emergency rules will remain effective for 120 days unless otherwise challenged, and it remains to be seen how the LCB will enforce the new ban on flavored vaping products, but we’ll provide updates as this “crisis” develops.
If you have questions or concerns about the executive order, the emergency rules, and/or its impact on your business, please contact our office to set up a consultation.
Halverson Law, PLLC is a business law firm that specializes in Marijuana Business Law. We have been on the front lines of the cannabis industry and can help you navigate the legal landscape of cannabis law.