This is an op-ed that was published by the California Cannabis Industry Association and shared via MMLG‘s November 13th Blog Post: “Banning Vape Products Containing THC is not the Right Response to the Vape Crisis.”
The op-ed was penned by Partner and MMLG’s Board Chair Aaron Lachant and MMLG’s Director of Compliance Dr. Juli Crockett.

With legislatures in statehouses across the country implementing bans and moratoriums on vaping products, state and local officials within California have the opportunity, as they’ve done on countless other matters, to take the reins where others have faltered under the burden of responsible policy.

For there to be a solution, the problem must first be addressed. As of October 15, 33 individuals have died and over 1,400 people across the United States have been sickened by tainted e-cigarette and vaping products. Centers for Disease and Control and Prevention officials believe the majority of the products sampled contain THC. These tainted products by and large are being produced by bootleggers and sold on the unregulated market. In response, lawmakers have sought bans on all vaping products. However, we argue that a ban on vape products containing THC is an inadequate policy to curb an important public health issue.

Our reasoning is straightforward, through the course of history one thing is clear: bans do not work. To be even more obvious, if unlicensed products being sold on an unregulated market are driving these deaths and illnesses, how will a ban help what is an unfolding health crisis?

To wit, legal, licensed cannabis outfits in the Golden State have consistently complied with mandated state policies and laws regarding cannabis cultivation, manufacturing, transportation and dispensing. CannaSafe, a licensed testing facility in California, tested more than 100 unlicensed market cannabis goods and found “high levels” of pesticides in all of them. It confirmed the presence of Vitamin E acetate –one of the suspected culprits for lung injury– in the vast majority of samples. Among more than 100 products from licensed brands also tested, none contained the above. CannaSafe’s investigation simultaneously highlights the danger of unlicensed cannabis products and the safeguards of a regulated cannabis industry.

With a ban, the losers would be: the regulated and licensed cannabis market, municipal and state tax coffers, and California consumers pressed into buying unlicensed products in an unregulated market. During the “War on Drugs” no one in the United States saw more benefit from the ban than the very drug dealers and bootleggers that the ban was supposed to crack down on.

History repeats itself daily in the majority of municipalities in California. Two thirds of California municipalities prohibit all cannabis activity. By failing to regulate activity, unlicensed operators proliferate. A ban on THC vapes will only prohibit regulated vape product manufacturers and transfer market share to the unregulated industry. If a ban were to be implemented and with unregulated producers and sellers having no impetus to self-police, California consumers would be at a heightened risk of falling ill due to poor policy. If anything, regions that ban could see lung injuries remain steady or even rise.

Not to be lost in all of this either is the fact that communities of color will bear the brunt of a prohibition on vapes. The “War on Drugs” isn’t too far in history’s rearview mirror and its lessons are clear. Data shows law enforcement disproportionately used those laws against communities of color. Despite its aim at equity, legalization has not fixed this problem. Racial disparities in cannabis arrests still exist according to a Drug Policy Alliance report. Data from Colorado, Alaska, and Washington D.C. – all jurisdictions where cannabis is legal – show blacks are more likely than whites to be arrested for cannabis-related crimes. Here in California, law enforcement doesn’t need another tool to target enforcement against communities of color.

But why the sale and purchase of unregulated cannabis vape products at all? It’s simple, and none of it is addressed by a ban: lack of access to state-regulated products; over-taxation on regulated cannabis goods; lack of opportunities for unlicensed operators to transition into the regulated marketplace; and lack of customer education on the dangers of unlicensed products. The unregulated market will thrive so long as the cost of compliance outweighs the risks associated with unlicensed operations.

Lawmakers should resist the urge to cozy up to yesterday’s failed policies. Instead, it is time to acknowledge that a different course will benefit California, consumers and the nascent legal cannabis industry alike. The opportunity remains for a reasonable solution. State and city regulators should work with legal operators to ensure consumer protection. In addition, regulators and lawmakers should create more pathways to the regulated marketplace. With about a third of California municipalities permitting licensed cannabis activity, the majority of California is aiding and abetting the unregulated market through inaction. This can change.

California lawmakers can also investigate lowering taxes on regulated cannabis goods. Licensed cannabis products cost approximately 35 – 50% more than unregulated products. Price-conscious consumers have consistently resisted transitioning to the more expensive regulated market. Lowering taxes could encourage consumers to make the transition. Simultaneously, education and outreach campaigns on the dangers of the unregulated marketplace should be increased. The Bureau of Cannabis Control’s #weedwise campaign is a first attempt to draw attention to licensed versus unlicensed dispensaries, however more can and must be done to educate the public on the dangers of unlicensed/untested cannabis products.

With the understanding that this genie isn’t going back into its bottle, California officials should look beyond the short-sighted and to understand that fostering a stronger and more reasonable policy within its boundaries will provide a road map that the rest of the country can follow. It is imperative that state and local officials respond to the demands of protecting the public safety from unlicensed vape products by responsibly regulating its licensed cannabis industry.

For questions regarding cannabis licensing, compliance matters, investment, and business planning contact:

Aaron Lachant, Partner
alachant@nelsonhardiman.com
310.736.4684

MMLG
info@mmlg.com
310.449.4528