Vaping has gone mainstream and many are taking note. In 2014, the Oxford Dictionary named “vape” its word of the year. On April 20, VICE News reported on the “vape culture” that has developed over the last few years. Vaping has become a popular means for consuming both tobacco and marijuana. It was only a matter of time then before lawmakers would seek to regulate this new technology. And they now have.
The Food and Drug Administration (FDA) recently announced it would regulate e-cigarettes in addition to cigarettes and smokeless tobacco. The FDA yesterday issued a final rule on the topic, expanding the definition of “tobacco products” to include e-cigarettes, hookahs, pipe tobacco, premium cigars, little cigars and other products. The FDA made the following statement when announcing the new rule announcement:
This action is a milestone in consumer protection — going forward, the FDA will be able to review new tobacco products not yet on the market, help prevent misleading claims by tobacco product manufacturers, evaluate the ingredients of tobacco products and how they are made, and communicate the potential risks of tobacco products.
Some states have allowed minors to purchase these “tobacco products.” These new FDA regulations will now prohibit those sales across the country.
The final rule features the word “marijuana,” but only when discussing the likelihood that youths who use e-cigarettes will eventually use marijuana. Contrary to internet myth and concerns from a whole slew of our readers, the rule does not provide for the FDA to regulate marijuana products. This is consistent with the FDA’s previous policies on marijuana. The agency has not regulated marijuana products (so far) other than prohibiting marijuana sellers from making medical claims about marijuana products. This new rule on vaping products does not appear to have an immediate impact on marijuana, but it could help position the FDA to take a more active role in regulating marijuana.
Washington State passes law on “vapor products.” On a more local front, however, Washington state recently took a more head-on approach in addressing marijuana vapor products when its Legislature passed Senate Bill 6328. This act regulates “vapor products” and allows the Washington State Liquor and Cannabis Board (LCB) to create and issue licenses for the retail, distribution and delivery sales of vapor products. These vapor product applications must be made through Washington’s business licensing system and all applicants must submit to a criminal background check. The LCB has authority to make additional rules for the application process.
The bill makes distributing or selling a vapor product without a license a class C felony and it defines”vapor product” as follows:
[A]ny noncombustible product that may contain nicotine and that employed a heating element, power source, electronic circuit, or other electronic, chemical, or mechanical means, regardless of shape or size, that can be used to produce vapor or aerosol from a solution or other substance.
The bill specifically excludes “any product that meets the definition of marijuana, useable marijuana, marijuana concentrates, [or] marijuana-infused products” as defined in RCW 69.50.101. The statute defines “marijuana” as parts of the plant that have greater than .03 percent THC concentration on a dry weight basis. “Useable marijuana” is dried marijuana flowers from the plant, “marijuana concentrates” are products derived from resin extracted from parts of the cannabis plant with at least 10 percent THC concentration, and “marijuana-infused products” are products derived from marijuana with a THC concentration under 10 percent and intended for human use. Marijuana vapor products are regulated by the LCB and are not included in this bill.
SB 6328 takes further measures to ensure that vapor product licensees do not sell marijuana products. Licensees are prohibited from selling products that contain any amount of cannabinoid or synthetic cannabinoid. Cannabinoids are the chemical compounds found in marijuana. The two most prominent cannabinoids are tetrahydrocannabinol (THC) and cannabinol (CBD). CBD products have become more popular as some research shows they have a wide array of applications for treating various ailments. This bill prevents a vapor product licensee from selling vapors containing CBD even if the product does not qualify as “marijuana” under Washington Law because it does not contain the requisite amount of THC. For example, a vapor product licensee could not sell a CBD vapor product derived from hemp if it contains any cannabinoid.
In summary, if you want to legally sell any kind of vapor product in Washington State you must first obtain a license from the LCB. All vapor products must be sold by a vapor product licensee except vapor products including marijuana or any cannabinoids. Vapor products that contain marijuana (as defined in RCW 69.50.101) may only be sold by marijuana licensees.
Bottomline. It seems likely that agencies and law makers will continue to regulate vaping. We expect agencies like the FDA to continue researching the effects of vaping on the human body and to legislate accordingly. We also expect other states to regulate vaping, as Washington has done. If you are a stakeholder in the vaping industry you should make sure to stay updated on federal and state regulations as they continue to develop.