The Vaping Crisis: Regulators Face a Grilling

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Federal lawmakers grilled officials from the Food and Drug Administration and Centers for Disease Control and Prevention Wednesday on their inaction over the rising number of illnesses and deaths around the country linked to vaping.

Lawmakers particularly focused on THC-based e-cigarettes at the hearing, held before the Subcommittee on Oversight and Investigations of the House Committee on Energy and Commerce. The title of the hearing: “Sounding the Alarm: The Public Health Threats of E-Cigarettes.” 

The hearing comes in response to an escalating number of deaths and hospitalizations. The Centers for Disease Control and Prevention reported 530 cases of lung injuries linked to vaping—the majority of them in people between the ages of 18 and 34—as well as ten reported deaths in the country so far. (Georgia announced Wednesday the state’s first death “from a vaping-associated illness.” THC products do not appear to be involved. “The patient had a history of heavy nicotine vaping, but no reported history of vaping THC,” the state’s Department of Health reported.)

“There is clearly a massive regulatory failure that allowed for this to happen,” said Massachusetts Representative Joseph Kennedy at the hearing, referring to the Food and Drug Administration’s inaction. 

Kennedy asked FDA and CDC officials why they didn’t consider the health impact of vaping products before allowing them into the market. 

For its part, the FDA conceded it should have been more attuned to the phenomenon of vaping. “Speaking about the epidemic of youth use in e-cigarettes, in retrospect, the FDA should have acted sooner, we should have begun regulating these devices sooner,” said Norman E. Sharpless, Acting Commissioner of the Food and Drug Administration.

Sharpless and Anne Schuchat, Principal Deputy Director of the Centers for Disease Control and Prevention, told lawmakers that a majority of the illnesses are linked to e-cigarettes containing THC products. And a significant portion of the products were contaminated by Vitamin E acetate, a product used as a diluting agent in the illicit cannabis market, Sharpless added.  

“We know that most of the reported cases with information available so far describe e-cigarette use containing THC or THC and nicotine,” said Schuchat. “But no single product, brand, substance, or additive has been identified with all cases at this point.” 

Lawmakers questioned the FDA on why e-cigarettes haven’t been taken off the market yet. “Wouldn’t it be more prudent to recall the products?” New York Representative Yvette Clarke asked Sharpless. 

Sharpless responded that it’s still the early days of the investigation and that their main focus is on “testing the products, finding what they are and where they seem to come from.” Sharpless said that the FDA intends to finalize a “compliance policy” in the coming weeks. The compliance regulations will remove all non-tobacco flavored products from the market. But companies will have the chance to submit evidence that their products meet FDA standards, and can market them if approved. “We’ve accelerated our timeline, we’ve stepped up enforcement, we’ve stepped up education,” Sharpless said.

Sharpless also acknowledged that regulating THC-based vaping products is a challenge because of the legal gray zone that cannabis is in, as a result of conflicting state and federal laws. 

When asked how far the FDA is willing to go to protect people if it deems e-cigarettes unsafe, Sharpless said, “We could ban all flavors.” 

South Carolina Representative Jeff Duncan specifically targeted THC-based vaping products in his remarks. “I think the message here today is stop putting THC products in legally purchased pods and stop buying black market pods,” said Duncan. “There’s a health risk.” 

State representatives from Michigan, North Carolina, Massachusetts, and Kansas also confirmed that a majority of the cases in their states reported involved THC products, and some CBD products. 

Massachusetts Governor Charlie Baker placed for a four-month ban on all vaping products in the state on Tuesday, including cannabis vape products. “This ban on vaping product sales will allow our state to take a much needed pause,” said Monica Bharel, Commissioner of the Massachusetts Department of Public Health at the hearing. “To take a pause and gather more information and data to inform our next steps to protect our public’s health.”

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