In a major ruling Thursday, The Oregon Court of Appeals has sided with Dyme Distribution, a cannabis company that’s suing the state over its ban on cannabis vaping products. On Thursday, the court ordered a partial stay of the ban, placing a temporary block on Gov. Kate Brown’s move to lockdown flavored vape cartridges. After moving swiftly to implement wide-ranging bans on vaping products in an effort to reduce vape-linked illnesses and deaths, state governments have begun facing a bevy of legal challenges from industry associations and patient and consumer advocacy groups.
As a result, courts have had to weigh the negative economic impact vape bans have on businesses and consumers against the risks some vaping products present to public health. The appeals court had already granted a stay of Gov. Brown’s ban on flavored vapes containing nicotine. The court’s decision to grant a stay on the flavored cannabis vape ban comes nearly one month after the tobacco industry halted the ban on nicotine products on October 17.
Appeals Court Recognizes No Link Between Vape Flavors and Lung Injuries
Cannabis shops across Oregon are once again stocking their shelves with flavored cannabis vape cartridges and selling vaping products to consumers. That’s good news for Oregon-based Dyme Distribution, the sole company with distribution rights to Winberry Farms, a leading cannabis vape cartridge company.
After Gov. Kate Brown ordered the Oregon Liquor Control Commission to issue a six-month ban of flavored vape products in mid-October, Dyme Distribution filed for a judicial review of the regulatory agency’s rules for implementing the ban. And on November 1, the company also filed a motion to stay the ban and furthermore, brought a lawsuit against the state. Dyme claims in the suit that the ban has caused irreparable damage to its business.
In its decision, the Oregon Court of Appeals agreed with Dyme Distribution. In arriving at its decision, the court considered several factors. First, it considered the likelihood that Dyme would succeed in its judicial review of OLCC’s ad hoc rules for banning flavored cannabis vapes. Second, the court considered how the ban, if it went on for the full six-months, would impact Dyme’s business. Finally, the court considered whether a block on the temporary ban would present adverse risks to public health.
After considering those factors, the court issued the stay Dyme had sought, ending, for now, the temporary ban on flavored cannabis vapes. “The Court correctly recognized the OLCC could not connect flavors with the lung injuries we’re seeing from vaping,” said Andrew DeWeese, a lawyer with Green Light Law Group that filed the lawsuit on Dyme’s behalf.
Blanket Bans on Vaping Products Fall as New Evidence Emerges
The legal battle surrounding the OLCC’s flavored vape ban echoes challenges to similar actions in other states. In Massachusetts, for example, a State Superior Court judge recently ruled against the state’s ban on medical cannabis vaping products. But just as that ban was set to expire, the state’s Cannabis Control Commission issued a quarantine of medical cannabis vaping products involving oils, concentrates and other non-flower inhalables.
In Massachusetts, critics of the ban argued that it simply forced cannabis patients and consumers back onto the illicit market, the source of many of the unregulated THC vape cartridges responsible for lung injuries and deaths, according to experts.
Indeed, one Massachusetts testing lab, MRC Labs, found upwards of 50 percent vitamin E acetate in counterfeit cannabis vape cartridges. In a recent report, the Centers for Disease Control identified vitamin E acetate in the lung fluid of patients struck by EVALI, or e-cigarette or vaping product use-associated lung injury.
Vitamin E acetate is an oil used as a diluent and cutting agent in vape cartridges, and it seems to show up frequently in unregulated products. The chemical plays no roll in flavoring vapes. And while many states do not yet have regulations or testing procedures for the chemical, MRC Labs says it has so far found no vitamin E acetate in regulated products submitted for analysis. Hence, argue critics of the quickly-implemented state-wide vape bans, regulated cannabis products are safer and more effective.