California Lawmakers and Cannabis Regulators Talk Vape Crisis, Illegal Shops

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On Wednesday, the California Assembly hosted a hearing that stretched four hours to address illnesses linked to cannabis and tobacco vaping products, and “deficiencies” in the state’s cannabis regulations. 

The hearing was in response to the nearly 1,300 people who have fallen ill across the U.S. after using cannabis or tobacco vape products in recent months, but covered a range of issues affecting the state’s legal cannabis industry and its regulators. As of October 8, 26 deaths have been confirmed in 21 states, according to the Centers for Disease Control and Prevention. The CDC has said that while no single source has been identified as the source of pulmonary illnesses, “most patients report a history of using tetrahydrocannabinol (THC)-containing products,” and that the latest information from investigations suggest that THC products from unregulated sources “play a major role in the outbreak.” 

The state’s illicit market and its products, including vapes, came up repeatedly during the joint committee hearing, the first of two. No legislative action can be taken until January when lawmakers are back in session, but the information provided Wednesday will be used to in the shaping of the next hearing. 

Susan Fanelli, acting director for California’s Department of Public Health, said during the hearing that, at this time, “no recommendations have been finalized,” but next week, the CDPH will release a media and advertising educational campaign aimed at discouraging youth use of vape products. 

“Vaping has risen dramatically in popularity around the world,” Committee Chair Adam Gray said at the start, adding, “We need to identify where existing efforts have failed.” 

On consumer protection, Assemblymember Evan Low, who represents South Bay and Silicon Valley said, “I know this is just the beginning of the conversation.” Low also referenced existing bans on cannabis retailers in nearly three quarters of localities in California, which pose hurdles to safe access to regulated cannabis products. 

“We, as a state, are a port of entry for a lot of vaping supplies in the United States, and I know that we have a particular important role,” Low said at the start of the hearing, adding that state leaders are considering a ban on vape additives, much like the ones that have been implemented in states like Washington. 

“The developing brain is especially vulnerable through age 25,” said Elisa Tong, a tobacco research expert and associate professor of medicine at the University of California, Davis, referencing stronger tobacco and cannabis products now widely available. Cannabis concentrates, she said, have grown three times stronger over the years. “This is an ongoing natural experiment in humans.”  

Kimberlee Homer Vagadori, project director for the California Youth Advocacy Network, said that the landscape changed in 2018, when pods hit the market in a big way, because they were smaller and therefore easier for young people to conceal. 

“Youth use of marijuana is high,” Homer Vagadori said, higher than both tobacco use and e-cigarette use, adding that nearly 22% of teens “did report vaping THC products in California” in a recent survey.

Gray said that he’s talked to school leaders and nearly every one of them suggested that the “majority” of products confiscated from students are THC products. Gray added that young people seem to think that tobacco vape products are dangerous, but cannabis vape products aren’t. Gray said that it strikes him that it’s a “dangerous” public health outcome when people don’t know the facts. 

“It seems like a danger and clearly we don’t know quite what’s causing it,” Gray said. “Perhaps we don’t get a better idea, and people shouldn’t be vaping at all.” 

Assemblymember Jim Cooper, who represents parts of Sacramento and San Joaquin counties, said that he thinks that more funding should be put toward enforcement because the illicit market is thriving. It’s “relatively easy,” he said, for young people to find secondary market products. “I put the blame on the state for a lot of the issues that have come up, for a long time,” Cooper said.  

Later, during the hearing, Lori Ajax, chief of the Bureau of Cannabis Control, said that in the last 6 weeks, the Department of Consumer Affairs Cannabis Enforcement Unit issued a number of warrants that have led to the seizure of 21,000 lbs of cannabis products worth $51 million, including Kushy Punch, a licensed business that appeared to be operating as an illicit market manufacturer of, among other things, unregulated cannabis vapes. 

“I wonder how many other Kushy Punches there are out there,” wondered Assemblymember Jim Wood, who represents areas of California’s North Coast. “It’s a little frustrating that we don’t have much in the way of enforcement,” except for citations and misdemeanors, Wood said. “It feels like all of you have tool belts but not enough tools.” 

Ajax said that the BCC has been “closely following” the vaping “crisis,” and outlined the testing requirements for licensed businesses. Ajax said that the BCC “is focused on unlicensed activity,” tracing the sources of these illicit market products, and education. 

But Harinder Kapur, senior assistant Attorney General focused on cannabis control, said that roughly 80% of the cannabis industry in the state remains illegal 22 months after legal sales went live. Enforcement now requires significant resources and coordination, she said, and where it does happen, cannabis enforcement remains difficult because “fines may be viewed as the cost of doing business.” “It’s not having an effect,” she said. In one recent meeting with law enforcement, Kapur said, it’s viewed as a game of “whack-a-mole.” 

Gray asked for recommendations from Kapur about what “tools” they need to better enforce cannabis laws in the state, and to bring more consistency to policies. 

“California has some of the most rigorous standards” for testing products in the legal, licensed market, Kapur said. “Unfortunately, we still have a very large unregulated and illegal market and they continue to sell products in the state that are of unknown origin.” 

Nicolas Maduras, of the California Department of Tax and Fee Administration, said that since July, the department has conducted 200 inspections and participated in 75 search warrants. “The illegal market is very large,” Maduras added, saying that enforcement works very slowly. “I don’t think that’s a method that serves the state best.” Instead, he noted, “There need to be civil penalties and tax penalties that can be put on very quickly.”

Assemblymember Kevin McCarty, who represents Sacramento, said that it’s up to lawmakers and regulators to ask themselves, about vapes: “Is it safe in the first place? Should we be permitting it?” McCarty asked if there was a high prevalence of flavoring in cannabis vapes. 

“I do not believe that exists,” Homer Vagadori said, highlighting the gaps in cannabis data, and also in funding for cannabis research. Much of the landscape review focused on tobacco data because that’s what’s funded, she said. 

McCarty said that even if there was a ban on flavoring, it’s unclear whether it would be an effective public policy. McCarty asked if there was a “safe, nuanced way” to go after the illicit market vapes, but not licensed vapes. Tong said that, because the source remains unclear, the CDC is advising that people refrain from all vape use. “I think that would be the safest thing for public health,” she said. 

Monique Limón, who represents more than half of half of the County of Santa Barbara and nearly a quarter of the County of Ventura, said she was grappling with the scope of the vape crisis, as it’s evolving quickly. “The problem is outpacing the potential solution,” she said. 

After the public health overview, Low said that school officials are saying that vaping is one of the most critical issues they’re facing. “I will admit to you that your presentation scared the crap out of me,” he said to Tong. 

“Absent a complete ban, this is only going to get worse. Is that true?” asked Assemblymember Robert Rivas, who represents Pajaro and Salinas valleys of the Central Coast. Tong responded that every week, her “slides are outdated,” because the numbers are rising.  

Gray, the committee chair, said that sometimes bans “serve to exacerbate” the problems, asking if regulation, taxation, and oversight would work, or if a “prohibition-style ban” could be an effective option.

“As a provider, I’m not sure that’s usually my realm,” Tong said. “I think time is telling that these products are not safe, so it’s worth looking at every angle.” Tong added that if the CDC is saying to stop vaping, “what are our options?” 

Wood pushed and said that, because so much has been decriminalized around cannabis, how would a company be prosecuted, if found to be responsible for vaping illnesses or deaths. 

“Would you be able to prosecute it?” Wood asked Kapur, with the attorney general’s office. “Is this industry going to have the same level of responsibility as the lettuce industry or the spinach industry?” 

Kapur said that if there’s a serious violation, it can be attached to another charge, and become a felony. In the case of a death related to vaping, for example, that would be likely, she said. 

“So there would be consequences?” Wood asked. 

“Yes,” Kapur said. 

“Just like lettuce,” Wood said. 

During the public comment period, several themes emerged: the need for strict policies that could curb teen use, though some highlighted that cannabis vaping was being conflated with the overall rise in teen vaping; the need to separate naturally occurring terpene flavors from synthetic ones; that over-regulation, high taxes, and local bans are creating access hurdles to safe, legal cannabis, and driving people to the illicit market. 

“When you have two-thirds of the state that are banning retail sales, it shouldn’t be a surprise to anyone that we’re seeing the bathtub gin of 2019,” said Sabrina Frederick, director of government affairs for Berkeley Patients Group. 

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