Policy & Politics Law & Industry Joseph Chicas

California State Legislature Holds an Emergency Recess Session on Vaping Illnesses and Deaths

The California Legislature – despite ending session for the year in late September – reconvened for a Joint Informational Hearing held by the Assembly Committees on Governmental Organization, Business & Professions and Health on October 16th for an intimate discussion with department leaders and health experts, officially called the Assembly Committees on Governmental Organization, Business & Professions, and Health Joint Informational Hearing: Vaping Tobacco and Cannabis Products: Health Effects and Deficiencies in Regulation and Current Law.

Thus far in what the CDC is calling an “outbreak”, at least 1,100 people have been sickened and approximately 3 dozen have now died, including a 17-year-old from New York, the youngest death yet.

The 4 hour hearing, chaired by Assembly Members Adam Gray, Evan Low and Jim Cooper, listened to testimony from three panels who dove into elements of the problem, and some of the solutions to it that can be enacted upon once the Legislature reconvenes in January, in order to be prompt and proactive in addressing the outbreak.

The panels featured the likes of Dr Elisa Tong, Associate Professor of Internal Medicine at UC Davis, Nicolas Maduros, Director of the California Department of Tax and Fee Administration, Lori Ajax Chief of the Bureau of Cannabis Control , and Dr. Charity Dean, the Assistant Director of the Department of Public Health. 

The purpose of the meeting was to discuss the cause of the outbreak, and impactful solutions moving forward.

The very morning of the hearing, the reported number of fatalities rose again, and in addressing the first panel Assembly Member Robert Rivas stated; “This seems to be a race against the clock” as he referenced the announcement of the increase by Center of Disease Control.

In his elaboration, Assemblyperson Rivas affirmed his position that outright bans on vaping won’t work, and the legislature must look to a more strategic approach. Mr. Rivas pointed out that he represents a rural district where access to basic healthcare services are inaccessible to many, let alone the funds for education and treatment, and that enforcing a ban would simply not work there.

Assemblyman Gray noted  in questions directed at the Bureau that  language used in flavors and marketing names can appeal to minors, giving examples such as Wedding Cake, Key Lime Pie, Peanut Butter Breath and Banana Split, as seen in his visit to a licensed retailer.

“We talk here in this legislature about local control and upholding the promise of Proposition 64 in regards to that (local) control,” stated Assemblymember Low, the Chair of the Business & Professions Committee, “Right now they have no control of the situation.” further elaborating on the fact that it has been among the most contentious issue in both houses, and a primary problem in allowing for access to quell the illicit market.

This compounds issues facing the Bureau in regards to licensing and resources to efficiently operate, and as Assemblyman Cooper stated; “In my 5 years I have never seen a department head say they do not have sufficient resources.” – indicating that it has clearly been a massive detriment to the integrity of the regulated market

Low suggested creating a more uniform approach including consolidation of department resources with a proactive plan of action to address local control and even asset forfeitures.

One of the most profound statements made during the Public Comments, was from a gentleman that admitted to being an illicit market operator, saying; “I work, I’m doing my best to get through licensing and becoming a compliant participant and just trying to feed my family.” He pointed out that when the Legislature and BCC – referring to them as “the powers that be” – are focused on enforcement instead of creating more opportunities for licensing, it makes it difficult  for those who really are trying their hardest to transition to the legal market while still making a living. He posited that a great faction of companies currently operating legally were previously in the “gray market”, and that there needs to be focus on more of the activity necessary to the supply chain besides enforcement.

The majority of other public commenters seemed to hold the position that more regulations and laws are needed, and to create more funding for enforcement, to “crack down” on the illegal market, with a minority amplifying the lack of opportunities for licensing, local bans, and the need to deregulate barriers to entry.

There was no mention of creating more efforts to enhance outreach and education to the public.

CDPH’s Dr. Dean disclosed data in her testimony from private interviews held with 78 patients suffering Vaping Pulmonary Lung Injury (VPLI) finding that of those patients, 72% of patients reported use of THC vape products, 38% CBD vape products and a mere 10% of them had used nicotine vape products. Only 1 person disclosed that theirs originated from a product purchased at a licensed retailer. Dr. Dean further explained that in the epidemiology they found that Vitamin E acetate was found in some but not all products, leaving many unanswered questions as to the primary culprit behind the lung injuries and deaths.

Many on the dais noted how vaping is not at all new and perhaps this outbreak is in direct relation to the illicit market, which has exponentially grown. Towards the end of the hearing, Dr. Dean affirmed to  Assemblyman Wood when asked, how surprising it is that this is all of a sudden happening, many years after the rise in popularity of vaping. A similar question came from Assemblyman Gray to the Dr. about how “odd” it is that there are only a handful of cases in Canada, with the vast majority being isolated to just the states and nowhere else in the world. Dr. Dean responded that “It is interesting.”

Due to the Legislative Session being on recess, the legislature cannot motion any actions but made it clear that this would be more than just discussion and intend to act with “a great sense of urgency.”

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