Vaping Bans Miss the Mark

Chelsea Cox

October 3, 2019

“STOP vaping now”

“Vaping: The deadly impact on people’s lungs”

“Vaping death toll rises…”

It has been almost impossible to read the news in recent weeks and not see a frenzied article about vaping, e-cigarettes, and vaping products. With seventeen reported deaths connected to vaping products as of October 2nd in the United States and many more hospitalizations, governments are struggling to craft an appropriate response to the rising fear from the public in tandem with the unknowns of what exactly is happening and from which products the harms are stemming from.

Vaping is defined by Health Canada as “the act of inhaling and exhaling an aerosol produced by a vaping product, such as an electronic cigarette”. While this definition is uniform and can be found repeated in American sources, the types of products which can be vaped vary significantly. Some products, such as the nicotine-based vaping device Juul, are regulated and have been approved for sale and use, while others such as some types of recreational cannabis oil are unregulated and illicit for sale and use.  A major issue with the media coverage to date on vaping is that the reports fail to differentiate what products are being discussed.

The California Department of Public Health has urged that “everyone refrain from vaping, no matter the substance or source, until current investigations are complete.” Some States, such as Massachusetts,  have gone so far as to enact an outright ban on all forms of vaping, calling the current rise in adverse events a “public health emergency”. Canada has remained more neutral, with the Department of Health releasing a bulletin stating they are monitoring the data and will act accordingly. So far there have been minimal vaping-related illnesses reported outside of the United States with only one confirmed case in Quebec as of October 2nd.

While the increasing rates of vaping-related illnesses are troubling and deserving of immediate attention, measures such as the bans enacted in some States run counter-productive to minimizing harms, echoing out-dated prohibitionist models of thinking. Not all vaping is created equal and an outright ban fails to recognize this. These regulatory responses also fail to recognize that prohibitive bans such as those enacted in some States, while well-intentioned, have been shown to push consumers to unregulated and more harmful alternatives.

“Vaping” as an activity is not uniform. Some patients, under physician guidance, vape cannabis oil or dried flower as a means to alleviate pain, providing a safer consumption alternative to smoking. Others vape illicitly-manufactured cannabis oil mixtures, knowing little about what is in them or how they were processed. A larger share of consumers vape government approved and regulated nicotine-based products, which for some are a proven smoking cessation tool and for others act as an alternative to smoking. There are a spectrum of utilities and reasons for vaping, alongside a wide range of available products – both illegal and unregulated and legal and regulated.

The current media dialogue and regulatory responses miss this vaping spectrum, instead categorizing all forms of vaping as the culprit for the adverse effects being experienced. Yet, “the outbreak is almost exclusively caused by illicit, street purchased THC (cannabis) contaminated with vitamin E acetate” as stated by 30 leading health professionals in Australia, which not only highlights the lack information about the vaping products to blame but also the global nature of the vaping dialogue in general.

So why then are regulators banning legal forms of vaping and associated vaping products when the spikes in harm mainly stem from the illegal side of the equation such as illicit forms of THC oil? This form of emotionally-based rather than evidence-based decision-making is common in the realm of controlled substances, where banning something (either a product or the activity itself) is seen as the appropriate way to stop the behavior. Yet, as we’ve seen from a decades long failed prohibition on drugs, banning a substance or method of consuming a substance, does not mean people will stop using it.

Another example of regulators seeking to ban a controlled substance in the face of potential harms is Quebec’s response to the upcoming legalization of store-bought cannabis edibles. With cannabis edibles set to become available by the end of this year, the Quebec government has put forward a proposal that would ban sweet versions of these products in the Province. While the intention behind the ban is to protect youth and public health, edibles are currently the quickest growing method of consumption for cannabis consumers (despite store-bought edibles not yet being legal in the country) and a safer alternative to smoking. A ban on these products as Quebec is proposing will in the end push consumers into the illicit market, where cannabis edibles are readily available, extremely potent, and lack any regulatory oversight.

A further, more harrowing example can be seen in 2012 when the Ontario government de-listed and replaced OxyContin with a tamper resistant version – OxyNEO. OxyNEO was designed by Purdue Pharma, the same manufacturers as OxyContin, as a means to minimize the pill tampering that was increasingly common among OxyContin users who sought a more potent high that came through crushing up the pill. This near-instant ban on OxyContin was put forward with the hopes of halting pill crushing and misuse, however it had immediate adverse impacts.

Users who were reliant on high potency OxyContin’s lacked regulated access after the ban and lost their means of achieving the potent high that they were dependent on. This in turn led users to the illicit market, where analogous drugs such as heroin were available that mirrored the potency level of crushed-up OxyContin’s. This in turn caused an “explosion” of heroin use and a spike in overdose deaths, as heroin provided a high potency alternative to tamper-proof OxyNEO. While regulators were trying to limit harms by barring access to OxyContin, they were instead proliferated by pushing consumers into the illicit market and to unregulated versions of a drug that mirrored the potency that they were dependent on. For example, if OxyNEO was the decaf version of the drug, and OxyContin was the regular coffee, then heroin was a double (or triple) espresso shot. If you are reliant on coffee and usually drink a regular cup, switching to decaf isn’t going to cut it – you’re likely to pick up drinking espressos.

As seen in the above examples, removing regulated access to one form of a substance can push consumers towards one even more harmful and one that is unregulated. In the case of vapes, there is a high likelihood that those who have an existing nicotine dependency and who are currently using vapes in States that have enacted bans will turn to cigarettes in lieu of other alternatives. A recent study found that among 16 and 19 year olds the prevalence of vaping (in the past 30 days) was increasing in both Canada and the United States, and it is plausible that this increased prevalence could result in an increase in youth cigarette smoking. While the goal of nicotine regulation is undoubtedly a smoke-free society, reality tells us that we are far from it.  This is evident in that the jurisdictions that have banned vaping continue to sell cigarettes. Understanding the issue and its multifaceted nature is needed before outright bans or potentially negative behavior-shifting regulation is put into place.

Knee-jerk bans, whether it’s the current vaping examples, OxyContin delisting during the opioid crisis, or the future proposed bans on sweet edibles in Quebec, show a failure by decision-makers to recognize the realities of the multiplicity of controlled substances in today’s society and modes of consumption. They lack evidence and risk introducing more harms to consumers by leaving them no choice but to turn to the illicit market, where social media and near-universal accessibility to a computer make getting contraband products easier than ever.

The focus instead should be on tightening up regulation, educating teens and young consumers, disallowing marketing and branding (Juul advertisements are extensive in Canada), and working to minimize the illicit market. The fact that fruit and desert flavoured vaping oils which contain nicotine are currently allowed through regulations, while other forms of flavoured tobacco-related products such as rolling papers and cigars are banned signal a disconnect between Canada’s controlled substances regulation and Health Canada’s goal of minimizing adolescent nicotine use. This disconnect is also found in the U.S. states that have enacted bans, in that these States continue to allow the sale and use of flavoured tobacco products such as menthol cigarettes and fruit flavoured rolling papers. We are a society that loves substances, whether its alcohol, tobacco, cannabis, or caffeine and banning them will not stop individuals from using them.

Chelsea Cox is a PhD Student in the Faculty of Law at the University of Ottawa.