The vaping health crisis in the U.S. will lead to lawsuits that could threaten the existence of the entire industry, as well as having consequences for legal cannabis businesses too.
Following numerous reports of deaths, injuries and outbreaks of disease associated with vaping in the U.S, which have garnered headlines across the world, lawmakers at the state and federal level are under pressure to act fast.
Already, the Trump Administration is reportedly working on an all-out ban of flavored e-cigarettes.
Regardless of any such ban, legal experts anticipate a wave of litigation, as is usually the case when a product causes widespread harm to consumers.
“I would tell you absolutely there will be a class action lawsuit,” said Vincent J. Trimarco, a New York criminal defense attorney known for his work on major marijuana cases in the state.
The primary target of these lawsuits are, of course, those companies linked to the vape products suspected of causing harm. But many of the manufacturers of these products are underground, illegal operations which already have, or likely will, shut up shop and disappear completely to evade legal action.
Trimarco said that the fallout of the vaping health crisis is likely to extend beyond vaping companies, legitimate or not, and impact the regulated marijuana industry as well.
“You have the market ripe for a class action lawsuit because people are being hurt,” he said. “The lawyers are going to take advantage of that by encouraging anyone that thinks they were affected by medical marijuana or legal marijuana to come forward. That’s going to affect the legal market, because there’s big, big money in it. And it could hurt…the legalization of marijuana products. It’s certainly going to hurt the industry, financially. No question.”
Trimarco said that the knowledge gap between vaping and its potential health issues, which public health officials are still investigating and researching, is likely to hamper further legalization efforts for now.
“I think it’s important for the medical, scientific aspect of it to be clear,” Trimarco said. “Is it the process of vaping that’s hurting people, or the chemical in it? And as in any other health issue, you have a couple of cases and then the hysteria starts. That’s dangerous too—it could be a deterrent to to further legalization.”
Sam Kamin, a professor of law at the University of Denver who focuses on cannabis-related legal issues, sees this hysteria as a danger if it results in blanket bans on products. He notes that the most damaging reports from the vaping health crisis appear to stem from black market products such as faulty vape devices and contaminated vape oil.
“And to pull products off the legal market,” Kamin notes, “pushes people (towards) the black market and…away from regulated and tested products, to products that they know much less about.”
Kamin said that opponents of marijuana legalization will use the vaping health crisis “as an opportunity to double down on that (opposition),” instead of taking a measured view of the risks and informing the public accordingly.
Kamin’s concerns are shared by the National Cannabis Industry Association (NCIA) who, in a press release last month, called on Congress to “immediately remove cannabis from the Controlled Substances Act and begin to sensibly regulate this substance in a manner similar to alcohol and other consumables, and to make funds immediately available to state medical authorities to investigate these cases.”
NCIA executive director Aaron Smith said that vaping deaths and injuries are not because of inherent dangers but “are yet another terrible, and largely avoidable, consequence of failed prohibition policies.”
These prohibitions policies “interfere with research, prevent federal regulatory agencies from establishing safety guidelines, discourage states from regulating cannabis, and make it more difficult for state-legal cannabis businesses to displace the illicit market. These policies are directly bolstering the markets for untested and potentially dangerous illicit products,” he added.