The Massachusetts Cannabis Control Commission (CCC) is asking the public to help the agency determine what it should do about the more than 619,000 vaporizer products – representing millions in potential revenue for retailers and manufacturers – that were quarantined between Sept. 25 and Dec. 12, 2019.
Beginning last summer, after the mysterious lung illness now known as EVALI, or e-cigarette, or vaping, product use-associated lung injury, sickened thousands of people who had reported using vaping products and in all 50 states, Massachusetts Gov. Charlie Baker declared a public health emergency Sept. 24. He issued a temporary ban on the sale of vaping products, including those produced by licensed cannabis producers in both the medical and adult-use markets.
Suffolk Superior Court Judge Douglas H. Wilkins later stepped in and ruled to exclude medical cannabis vape products from Gov. Baker administration’s ban on all vaping product sales. But then less than a week later, the CCC intervened and implemented a quarantine on "all vaporizer products” Nov. 12, with an exception for products used to vaporize flower for medical-use patients.
Meanwhile, the Centers for Disease Control and Prevention determined that the suspected and now primary cause of EVALI was vitamin E acetate, a cutting agent usually found in illicit market cannabis devices. More than 2,800 people reported cases in all 50 states, and 68 people have died.
On Dec. 12, 2019, the CCC amended the order and permitted licensed producers to resume production and the sale of new vaping products – with a revised testing regimen that includes a test for vitamin E acetate.
But no decision was made on the quarantined 619,362 products at that time. Industry leaders in the state are hoping that changes soon.
Lost Revenue and Sales Opportunities
Ellen Rosenfeld, president of CommCan, a vertically integrated cannabis company licensed under the medical and adult-use programs with two dispensaries, says she has 35,000 products in quarantine that represent a potential of $2.4 million in sales revenue for the company, which she owns with her brothers Marc and Jon. Many of those products are nearing their year expiration date from when the product was first tested for sale.
“We want to reprocess the oil in the cartridge, strip it down, distill it again and make sure the only thing that’s there is pure oil distillate, which is what we do now,” Rosenfeld says. “This has been something that I personally and CommCan as a company has reached out to the CCC on several occasions to move this along over the last few months. I was always told that they were working on it, but nothing came to be.”
Brandon Pollock, CEO and co-founder of Theory Wellness, which is vertically integrated, licensed in both the medical and adult-use markets and operates three dispensaries, says the quarantine and delays have “been very negative” for the company, as he estimates Theory has more than a million dollars in inventory that’s been on hold for about nine months.
“It’s been really challenging just knowing that the inventory is just sitting there, and we had to buy and make new inventory, with the replacement cost to basically to keep the vape sales going when we were able to start selling them again,” Pollock says. “We very much look forward to a process finally to retest and sell the products when they are deemed safe.”
Nicole Campbell, who owns The Green Lady Dispensary, the only cannabis retailer on Nantucket, the island county about 30 miles from Massachusetts’ mainland, hasn't been able to sell vaping products at all since the quarantine went into effect. Because the business is surrounded by federal waters, the vertically integrated company licensed for the adult-use market does everything in-house and can't ship products to Massachusetts' mainland for testing. But Campbell's modified in-house testing procedures have not yet been approved by the CCC to ensure they meet new guidelines, she says, namely screening for vitamin E acetate.
Campbell said although she doesn't have an estimate in how much revenue the company has lost from not being able to sell vaping products, anecdotally, customers ask often when they'll be able to sell them again.
"Every single day we get asked about it. Our retail sales agents are so frustrated because every single day [customers] ask about it. … I imagine there are a lot of people ordering [vape products] from the [illicit] market, and it’s really unsafe. I feel bad for people not having safe and secure access to legal vape products,” Campbell says. “We are working through it, it’s taking a lot more time than everybody would like, but I do think it will work out … We’re being very, very patient and trying to ensure public safety, which is the No. 1 goal that everybody is trying to do.”
Testing: 'It's Sort of a Hit-Or-Miss Environment'
Cannabis Control Commission Executive Director Shawn Collins says the agency has been working on a resolution for what to do with the quarantined vape products, including sending small batches to licensed testing laboratories, but has not been able to determine if they are safe to sell because heavy metal test results have been “all over the map.”
“Our testing that we’ve conducted as a commission did not detect any vitamin E acetate, which is obviously a good sign and encouraging news, but we did identify some pretty concerning levels of lead,” Collins said. “Upon retest though, the results are a little all over the map. Where something that might have failed for lead – and failing for us would be above 500 parts per billion – didn’t fail the second round. So, it’s sort of a hit or miss environment."
For example, one test batch identified lead levels as high as 27,000 parts per billion, Collins said, but then a second round on the same batch showed “non-detect" results.
“There were really concerning levels of lead and that’s what prompted us, we better try to wrap our heads around this,” Collins said. “It’s annoying; we went looking for [the presence of] vitamin E acetate and stumbled upon another concern.”
He said he hopes that the public call for comments will provide answers to their questions about product safety, including if it’s possible to reclaim oil from the cartridges should they test above acceptable levels for heavy metals, and how to best approach that, a solution CommCan's Rosenfeld is pushing for. Collins encourages experts from other states to weigh in on the question, as well, which reads: Under what conditions should the Commission allow the sale of vaporizer products that were prohibited for sale or subjected to quarantine between September 25, 2019, and December 12, 2019?
“We’re trying to glean insights from the industry and folks that lived this stuff, like we do, but perhaps more specifically and even in other jurisdictions, or even [from] our own state, because we know we can’t possibly talk to everybody,” Collins said. “This is an organized way I think to try to achieve that. If anyone has anything to offer, we would be open-minded about it.”
Collins says he doesn’t have a timeline on when the CCC will determine what to do with the products. They need to review and consider the public comments first, but he said there is a sense of urgency.
Pollock says once the state does come to a resolution, if producers are allowed to retest and sell, he estimates the products can be back on the shelves within a couple weeks. Theory has a medical-only dispensary in Bridgewater, an adult-use location in Chicopee and both programs at the Great Barrington store.
“There’s very comprehensive testing standards and protocols here in Massachusetts, with independent testing labs,” he says. “So we feel as an industry if we are able to retest the products that are in quarantine to make sure they are safe by all the different standards that they have to be, we feel they should be able to be resold, potentially with a label that discloses to customers they have previously been quarantined.”
So far, Collins says the CCC has examined the sources of the hardware, spoke to product manufacturers about their filling methods and to labs about their testing methodologies, among other efforts to determine the best way forward.
“We haven’t come up with an answer or a solution, so the idea behind [the public comment period] is, let’s ask a question and see what we can get for answers and figure out what ultimately to do with this inventory,” Collins said.
There are three potential solutions: retest and sell, reprocess the oil if possible, retest and sell, or destroy the products, Collins said.
“Sometimes the answers take time. ...We’ve worked through this with the industry as cooperatively as we can, but we’ve been searching for some of those answers that just haven’t appeared,” he says. “I understand it’s been a while, we’ve been spending a lot of time on this. This inventory does have a shelf life, and that’s one of the things we’ve been exploring, is time a factor as far as that degradation, especially in the context of the leaching of heavy metals?”
Those interested in participating in the public comment or learning more about the quarantine can visit the CCC’s public comment page. The deadline for submissions is July 15, 2020.