During the EVALI lung crisis, my state banned all vapes. We were wrong.
Earlier this month, a federally funded study of lung injuries associated with vaping confirmed what experts have been saying for years: Legal, regulated cannabis is far safer and better for public health than products bought on the illicit market.
The new study looked at the 2019 lung injury outbreak that left thousands of people across the country sick and at least 68 people killed. Analysis of state-level data found that states where adult marijuana was legal had a 42% lower incidence.
The only exception among legal cannabis states was my home state of Massachusetts, where the incidence of the disease (known as EVALI or VAPI) was in the top fifth of all US states. Other constitutional states were in the lower half.
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Compliance with the prohibition within the government
At the time of the outbreak, I was a marijuana regulator in Massachusetts, one of the earliest members of the state’s Cannabis Control Commission.
This will go down as one of the worst political mistakes in cannabis regulation history.
As someone who has seen firsthand the state’s response to the crisis, I am not surprised at its failure. It is the result of what it deserves to go down in history as one of the worst political mistakes in all of cannabis regulation: our governor’s illicit, ill-considered prohibition on selling all vape products when the public health problem was at its worst.
I learned of the ban just a few hours before it was announced on September 24, 2019. Concerns about a mysterious lung condition that appeared to be related to vaping had grown steadily, with the U.S. Centers for Disease Control and Prevention activating emergency operations to investigate the exact cause.
In response, Massachusetts Governor Charlie Baker announced that he was declaring a public health emergency and banning the sale of all vape products for four months.
Health officials had bad information
It was immediately clear to me that the people who made the decision were ill-informed about both the outbreak and the existing use of marijuana vape products in our state.
Since regulating cannabis was my job, I had looked at reports from outlets like Leafly that suggested the problem might be an additive used as a cutting material in illegal THC vaporizer cartridges.
On the day the ban was announced, Leafly released an investigation report tracking the travel of a contaminated illegal vape cartridge around the globe. But the Massachusetts ban was far-reaching. It included all vape products – cannabis and nicotine e-cigarettes, flavored or unflavored, whether for medicinal or adult use, licensed or unlicensed.
The ban went into effect without any intervention from the Cannabis Control Commission, and I felt that obvious issues were being overlooked.
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60,000 medical patients ignored
Many of us asked whether it should also apply to medical cannabis patients, for example. We proposed an exception for products that only vaporized cannabis flowers and not cartridges. Initially nothing has changed. People who used e-cigarettes to quit smoking were rightly given free smoking cessation opportunities during the ban, but 60,000 registered medical cannabis patients did not even receive recognition of their existence.
The administration and some media outlets vaguely described the ban as a “sales break” to give medical professionals time to “gather more information” and “better understand the inherent dangers of vaping nicotine and marijuana.” But none of these dates were discussed.
In the coverage of our local NPR broadcaster, various officials were quoted as saying we were the first state to issue such a ban. “I don’t care” how the crisis is dealt with, said a legislator at the time, as long as it is dealt with. She complained that Baker no longer paid “merit” to the legislature.
Knee jerk bans rarely work
As someone who had studied drug policy for years, I knew that these kinds of knee-jerk prohibitions were based on politics rather than actual evidence. In this case, the decision to ban all vape products has only resulted in a higher risk of serious injury or death for Massachusetts residents.
For my part, I pointed out that deliberately pushing people into the illegal market in which the dangerous products circulate is against all principles of harm reduction and public health. But decision-makers in the Baker administration seemed either ignorant of or deliberately ignoring the growing evidence linking the outbreak specifically to unregulated THC vape cartridges.
When the State Secretary for Health and Social Affairs was asked in an interview to respond to my warning, she did not have a great response. She said, “Our only concern is to raise awareness of the dangers of vaping.”
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Warning other states not to obey
Concerned that other states might follow Massachusetts and try to ban them as well, which is often the case with bad drug policy decisions like this, I and Dr. Michael Sinha of Harvard Medical School wrote a comment in the Philadelphia Inquirer saying not to follow our example.
Companies and supporters also pushed for the ban. Several lawsuits have been filed by both vape sellers and medical cannabis patients.
In response to one of these lawsuits, a Massachusetts Supreme Court judge found the ban to be “very likely invalid,” contrary to our Cannabis Commission regulator, and issued “without consideration or disregard for public facts and circumstances.” . The judge noted that the longer the ban stayed in place, the more patients would face undesirable decisions, including switching to opioids, living in severe pain, or buying on the illegal market.
Meanwhile, the number of cases and deaths in Massachusetts continued to rise, as did the dangers associated with the illicit market. Shortly after the ban went into effect, police said a man trying to sell THC vape cartridges in a Whole Foods suburban parking lot started shooting when his customers allegedly refused to pay.
That is why we regulate instead of prohibiting
When our commission finally regained authority to regulate marijuana products in November 2019, the CDC had confirmed that vitamin E acetate was the likely chemical culprit. We quickly put in place a temporary quarantine to ensure the contaminant was not found in government regulated cannabis vape products.
Not a single VAPI case has been traced back to a regulated cannabis product in Massachusetts.
Licensed companies we’ve worked with have generally been helpful and cooperative, which is more than I can tell about the Baker administration. The Ministry of Health ignored our office’s requests for data for so long that the chairman of the commission and I finally showed up for a public hearing to ask them to tell us if any of the diseases could be traced back to regulated cannabis products.
To the best of my knowledge, despite the unusually high incidence of lung injury associated with vaping in Massachusetts, not a single case has been attributed to a product sold in our regulated cannabis market.
Governor Baker views harmful prohibition as a success
In the end, the ban ended six weeks earlier. But even when it was lifted, Baker stood firm. He said he believed the policy had achieved its goals and was “amazed” that no other states had followed suit.
The governor and other proponents of the ban completely gave up the alleged aim of gathering information and finding the cause of the disease. Instead, they focused on certain nicotine products that didn’t play a significant role in the vaping injury breakout.
Using an illegal THC vaporizing problem to ban flavored nicotine
In November 2019, Baker signed a law banning the sale of all flavored tobacco products and held a press conference to praise the reform. Gone were any mention of the vape ban’s original goals of collecting data and understanding the sources of the outbreak.
As I sat at the Department of Health briefing on the new law, I was reminded of the Iraq war when I finally realized that the goal all along had been to fulfill a long-held desire for a pet policy. Mission accomplished?
That ban hurt real people
I am not a JUUL apologist. I’m a well-documented critic of Big Tobacco, and my think tank Parabola Center has written special language to exclude companies that harm and lie about public health from participating in the national marijuana industry. My concerns are based on evidence. When leaders disregard evidence and exploit emergencies for their own political ends, they harm more than their own credibility. They are harmful to public health. You hurt real people.
Perhaps there were good reasons for banning the sale of flavored nicotine. If so, we never heard them. Instead, evidence continues to show that our foolish ban has led to bankrupt businesses, more illness, and unnecessary deaths.
Shaleen title
Shaleen Title is a drug policy activist and attorney who previously served as a commissioner for the Massachusetts Cannabis Control Commission. She is currently Distinguished Cannabis Policy Practitioner in Residence at the Drug Enforcement and Policy Center at Ohio State University.
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