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Pot Legalization Makes Vaping Deadly

Scott Gottlieb, M.D.

Doctors have linked a tragic wave of lung injuries and deaths to the vaping of tainted marijuana concentrates. The episode reveals the dangers created by the federal government’s decadelong refusal to challenge state laws legalizing pot and promoting risky uses of its derivatives.

The Obama administration announced in 2013 that it wouldn’t enforce federal drug laws in states that had legalized pot use. The following year, Congress started attaching legislative riders to budget bills to prevent the Justice Department and other agencies from enforcing federal laws banning marijuana use in the 33 states that have made weed legal. The Trump administration has tried to reverse some of these policies. In 2018, then-Attorney General Jeff Sessions rescinded Obama administration guidance giving U.S. attorneys discretion not to enforce federal drug law in states that have legalized marijuana. But the White House has been reluctant to challenge popular state policies directly. As a result a large pot industry has bloomed in recent years, and a dangerous market in cannabis concentrates, such as the ones responsible for the vaping deaths, has proliferated.

According to an analysis by health officials in Wisconsin and Illinois, about 87% of those recently injured said they had vaped tetrahydrocannabinol, or THC, the main psychoactive ingredient in marijuana, from prefilled cartridges purchased from “informal sources” during the three months before they developed symptoms. A majority of the victims said they used THC every day.

Data from state marijuana dispensaries show that inhalation of these liquid concentrates from a vaping device is now the second most common way to consume THC, exceeded only by the old-fashioned way. Because the vape cartridges are prefilled, users don’t know what they’re getting. To prepare the concentrates, dodgy suppliers are known to add ingredients to thicken the liquids, since viscosity is seen as a measure of the concentrate’s potency. But these emulsifiers, including vitamin E acetate, can be deadly if inhaled into the lungs. The liquids can also contain pesticides and other contaminants that, when heated, produce gases that can directly injure the lungs.

Yet the Justice Department remains unwilling or unable to enforce existing federal laws, even on matters not specifically mentioned by the congressional budget riders. The feds are also reluctant to regulate this market. Exerting partial oversight over the riskiest products would effectively signal the end of federal marijuana prohibition. Justice officials see such a step as politically controversial, even as it becomes clear that a blanket ban is no longer politically practicable.

The result is an impasse. Federal agencies exert little oversight, and regulation is left to a patchwork of inadequate state agencies. The weak state bodies sanction the adoption of unsafe practices such as vaping concentrates, while allowing an illegal market in cannabis to flourish.

The Food and Drug Administration might be able to exert oversight on some vaping hardware. The FDA has jurisdiction over “components and parts” used to vape derivatives of tobacco. Manufacturers selling devices for cannabis often make vague claims that their products are intended for use with extracts and leaves, which could include nicotine and tobacco. This might give the FDA a hook over the THC vaping pens that are enabling most of the harm.

But such an assertion of authority might be hard for the FDA to sustain without clear laws and firm political support. So many state legislatures have legalized marijuana that the U.S. is well past the point of blanket prohibition. But mounting evidence of the public-health consequences from regular marijuana use, especially among children and expectant mothers, should give politicians pause. Studies show that regular use of THC affects memory, executive function and psychological well-being. The recent lung injuries and deaths confirm the market has become a Wild West of potent and shadowy products.

THC is currently illegal under federal law. Right now there’s no middle ground allowing federal agencies to scrutinize these compounds for their manufacturing, marketing and safety.

A feasible compromise would require Congress to take marijuana out of the existing paradigm for drug scheduling, especially if Congress wants to allow carefully regulated access for uses that fall outside FDA-approved drug indications. The ship has probably sailed on legalization for recreational use. But regulation of the potency of THC compounds, the forms they take, how they’re manufactured, and who can make purchases ought to be possible.

Research challenging bogus medical claims or establishing legitimate clinical uses for THC is thin on the ground. Getting legal access to marijuana for federally sanctioned drug research requires cumbersome registration and record-keeping. The supply also has to come from a tightly regulated source controlled by the feds. Scientists say the product is substandard. It’s also meaningfully different—in potency and other features—from what most people use in states where pot is legal.

Any federal regulation would need to be backed up with oversight and vigorous enforcement to keep a black market from continuing to flourish and causing these lung injuries. Expanding access to marijuana for legitimate medical research would allow more scientists either to validate or dispel the myriad claims about marijuana’s therapeutic usefulness. Whatever medical claims are made should be subject to the same federal standards applied to other drugs.

The protracted hand-wringing over federal cannabis policy must stop. The tragic spate of fatalities related to vaping of pot concentrates means the time has come for Congress and the White House to stop blowing smoke and clear the air.


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