Inslee signs his emergency order last month banning flavored vaporizers.
Inslee signs his emergency order last month banning flavored vaporizers. Lester Black

The Washington Department of Health (DOH) released new details Friday night regarding Gov. Jay Inslee’s emergency ban on flavored vaporizers, specifying exactly what the state will consider a “flavored” vape cartridge when the expected ban goes into place, likely later this week. The ban will block anyone from selling e-cigarettes or pot vaporizers that taste like anything other than cannabis or tobacco.

That means e-cigarettes that taste like fruit, menthol, mint, or any other non-tobacco flavor will be outlawed in Washington. Pot vaporizers flavored with non-cannabis flavorings will also be blocked under the ban.

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E-cigarette retailers in Washington have warned that the ban will destroy their businesses. Vape store owners in Massachusetts and New York have filed lawsuits seeking to block flavor bans in those states.

Inslee announced his emergency vape ban last month amid a nationwide outbreak of vape-related lung disease. The outbreak has sickened more than 1,000 people and 18 deaths have been associated with the mysterious illness. Health officials are confident vaping is causing the sickness, but they have yet to determine exactly what is making people sick.

The majority of the cases have been connected to black market pot vaporizers and evidence has emerged that harmful additives like vitamin E oil and heavy metals leaking from shoddy black market cartridges could be getting people sick.

The emergency flavor ban is expected to be voted on at the state Board of Health’s Wednesday meeting in Seattle. The temporary ban will go into effect the following day and last for 120 days, according to Kelie Kahler, a spokesperson for the State Board of Health.

"While we can’t speculate how the board will vote, the ban, if it were to go into effect... would go into effect the next day," Kahler said.

Inslee’s flavoring ban is unusual because the governor himself admitted at a press conference that there was zero evidence flavorings are causing the outbreak. Yet the legal language behind his flavor ban says exactly the opposite (emphasis added):

The immediate adoption of a rule prohibiting the sale of flavored vapor products is necessary to prevent and reduce youth and young adult exposure to severe lung disease associated with the use of vapor products.

Tara Lee, a spokesperson for the governor, said the flavored vape ban will prevent exposure to the lung illnesses because it will stop kids from getting addicted to vaping in the first place.

"As the governor said at the press conference, flavors are often used to hook kids, to get them started vaping in the first place," Lee said in an e-mail. "If kids don’t start vaping, then they won’t be exposed to the chemicals and other potentially harmful ingredients in the vaping liquids. That seems pretty straightforward to me."

Inslee’s emergency rules do not take any action regarding the regulation of additives, heavy metals, pesticides, or other compounds that are known to cause illnesses when inhaled and have been found in black market vaporizers. For example, vitamin E acetate, a compound that we know gets people sick and we know has been found in black market vaporizers, is still a completely legal additive for cannabis vaporizers in the state. His emergency rules are also not calling for direct regulation of E-cigarettes in the state, which are currently sold with essentially zero oversight regarding what goes into the devices.

All of which means Inslee is taking emergency action to go after something he knows is probably not causing the outbreak (flavorings) while taking a delayed approach to other compounds that are probably getting people sick (harmful additives). His emergency order last month called on banning additives "once the sources or causes of this vaping-related lung injury outbreak are identified."

One cannabis industry representative, who did not want their name published because they are working directly with the governor's office on the regulations, called Inslee’s ban “reactionary rather than science-based.”

“The fear and hysteria surrounding people getting sick as well as flavors in different products has created a perfect storm of reactionary politics rather than science-based decision making,” the representative said. “And that is what it really is. We have a purely reactionary situation based on a few people that got sick.”

Lee, the governor's spokesperson, pushed back on that characterization.

"I am sure the vaping industry is saying all sorts of things, but the bottom line is here that the governor is working to protect the health of people in this state," Lee said in an e-mail. "More than 1,000 people nationwide have reported cases respiratory lung problems related to vaping products. As you heard the governor say at the press conference, we don’t know what is being put into these liquids."

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Inslee’s flavor ban appears to be more based on the rise in teen use of nicotine vaporizers, which has been a known problem for years, rather than the recent outbreak of lung illnesses. Inslee’s temporary flavor ban is expected to be taken up by the state legislature when it reconvenes in January. Six state representatives have introduced legislation that would make the flavor ban permanent.

The emergency ban allows pot’s natural flavorings, called terpenes, to still be used in vaporizers but it blocks legal pot companies from using many other non-cannabis derived flavorings. This will likely have a major impact on Washington’s legal cannabis vaporizer market.

Pot-derived terpenes are costly, so budget vaporizer brands frequently use terpenes derived from other sources, like lavender plants or mint plants, to mimic the natural flavoring of pot.