On September 27th, Governor Jay Inslee issued an Executive Order banning all flavored vapor products, including flavored THC vapor products. This ban was issued in response to the recent spate of lung injuries, even though the precise cause of these illnesses remains unknown. The primary rationale for banning flavored vs. non flavored vapor products is the attractiveness of flavored vape products to minors and the dramatic increase in youth vaping. The ban has been set forth in emergency rule WAC Chapter 246-80.
In response to the flavored vapor ban, the Washington State Liquor and Cannabis Board (the “Board”) adopted the following emergency rules, effective October 10, regarding enforcement of WAC Chapter 246-80.
- WSR 19-21-182 – which allows the Board to serve an order of summary license suspension after a preliminary staff investigation indicates that a vapor product licensee has violated chapter 246-80 WAC and provides a framework and process for an affected vapor product licensee to petition the board for a stay of summary suspension.
- WSR 19-21-180 – which allows the Board to take disciplinary action against any licensed marijuana processor that fails to comply with the provisions of WAC Chapter 246-80.
- WSR 19-21-181 – which allows the Board to take disciplinary action against any licensed marijuana retailer that fails to comply with the provisions of WAC Chapter 246-80.
In addition to the enforcement and liability issues, the vapor ban creates new financial liabilities for licensees. For instance, current rules, prohibit retailers from returning banned products in exchange for credit to be used in the purchase of allowed products. In other words, licensees are stuck with cash reimbursement as the only option for return of a banned product, which places both parties in a difficult financial position.*
Recognizing this hardship to licensees, the LCB sent out an anonymous survey requesting licensees to explain the impacts of this current rule. Responses to the survey were due on October 25th. Hopefully, the Board will take quick action to allow credit for returned product, to alleviate some of the hardship of the vapor ban. More importantly, it is critical that both the state and federal governments take all steps necessary to determine the cause of the lung illnesses so that the problematic ingredient can be banned rather than all vapor products.
Stay tuned to this blog for further updates on the vapor ban; and for more information on the regulation of hemp and marijuana businesses in Washington State, please contact Heather Wolf.
*Since the publication of this post, the Board enacted an Interim Policy allowing returns of banned vape products for credit against future purchases of marijuana products