Flavored vape products, including flavored THC products, will remain banned in Washington state for the next 120 days, after a Thurston County judge Friday threw out a temporary restraining order against the state.
The ruling came the same day the Centers for Disease Control and Prevention (CDC) announced a possible breakthrough in the effort to determine the cause of vaping-related illness.
The legal fight in Washington began soon after the State Board of Health banned flavored vaping products in early October with an emergency rule, following an executive order from Gov. Jay Inslee.
The Vapor Technology Association and Baron Enterprises LLC sued the Board of Health and the Department of Health (DOH) later in October and asked for a temporary restraining order to stop the state’s ban from going into effect.
Judge Chris Lanese rejected requests for a temporary restraining order in a Friday ruling.
The Vapor Technology Association could not be reached for comment about whether it plans to appeal the ruling.
The next court hearing in the case is set for February.
The DOH defended the flavor ban as necessary, especially to keep youth from using vapor products.
“The ban of flavored vapor products is necessary to immediately prevent more youth from being attracted to vaping and putting themselves at risk for severe lung injury, as well as nicotine addiction,” a statement from the department said. “Adults who choose to continue using vapor products have the freedom to choose tobacco flavored vapor products from licensed retailers, as tobacco flavored vapor products remain on the market legally.”
Inslee’s executive order outlines a plan to control vaping and related lung-disease cases with both legislative action and rules.
Washington state health officials have identified 14 such cases statewide, including two in Spokane.
Health officials have had a hard time determining the specific cause of vaping-related illness, but the CDC announced a potential breakthrough in the investigation on Friday.
The agency said it identified 29 cases of vaping-related illness connected to vitamin E acetate found in biological samples from patients. None are from Washington.
The CDC’s determination comes as other recent studies have shown that some vaping liquids contain vitamin E acetate, which can be dangerous when inhaled.
Vitamin E acetate is usually used to dilute other substances, including in cosmetics, said Spokane Regional Health District Officer Bob Lutz. And while the substance can be used topically or ingested safely, it is not meant to be inhaled.
When vitamin E is heated in a vape pen, the toxic gas ketene can be released, recent research found, and can burn the lung.
Most of the samples with vitamin E acetate that the CDC released also contained THC. Lutz said that products containing the vitamin E acetate, used to dilute the THC, are likely not coming from stores, but instead are bought illegitimately.
Not all vape products, including the liquids, disclose their chemical ingredients, however. The Washington State Board of Health also sought to change that in the emergency rule, as well as by requiring vapor retailers to post warning signs in their stores.
“Going forward, there is a requirement that all (vaping) solutions will have to identify all ingredients,” Lutz said.
Inslee’s executive order requests that ingredient disclosure be required for all non-THC vapor products, including all compounds used in the production of the liquids. This proposal will go to the Legislature in 2020.
Starting in January, all tobacco and vaping products will be illegal for use by any person in Washington under the age of 21.