Michigan orders more tests, temporary halt on sale of licensed marijuana vapes

Kathleen Gray | Detroit Free Press

Show Caption Hide Caption Gov. Whitmer talks about decision to ban flavored e-cigarettes in Michigan Gov. Gretchen Whitmer spoke to reporters on Wednesday about decision to ban flavored e-cigarettes in Michigan.

In what could cause a delay to the start of Michigan's recreational marijuana market, the state is mandating a temporary halt in the sale of marijuana vapes and ordering that a portion of existing cannabis-infused vape cartridges get retested to ensure they don't contain an additive that has been tagged as the likely cause of serious lung illnesses in more than 2,000 people.

The marijuana-infused vape cartridges in licensed medical marijuana dispensaries, which could be as many as 1 million cartridges, have already gone through testing at state-licensed labs.

But the state is mandating that a sample of each batch of vapes from every dispensary — about 1.5% of existing vapes — get retested. And the state also is requiring that the sale of vape cartridges be suspended until all the testing is completed.

The order comes at a time when the state is sensitive to ensuring that public health is protected, but also just a week before the medical marijuana industry, which services nearly 300,000 people, is transitioning to the recreational market, which could increase fivefold to about 1.5 million people, according to estimates from the U.S. Department of Health and Human Services' Substance Abuse and Mental Health Services Administration.

The vast majority of the vaping related injuries, including 42 deaths, have come from black market vapes that contained THC, or tetrahydrocannabinol, the psychoactive element in cannabis that produces a “high" in a person’s system. Even though those vapes came from illicit sources, the state decided to mandate retesting of the licensed vapes as well.

More: 17-year-old is first vape-injured patient in U.S. to undergo double lung transplant

More: Judge temporarily halts flavored vape ban in Michigan, cites harm to businesses

Most of the black market vapes associated with the illnesses, dubbed EVALI by health officials, also contain Vitamin E acetate, which testing has shown isn't harmful when it's ingested as a dietary supplement or applied to the skin, but can interfere with normal lung function when inhaled.

Benjamin Rosman, CEO of the Ann Arbor-based marijuana testing facility PSI labs, said earlier this week that they have found Vitamin E acetate in black market vapes, but not in the vapes they've tested that have been produced by state-licensed processors.

Rosman said Friday the announcement set off a rush of phone calls and visits from anxious clients worried that a big part of their business is going to be shut down for an undetermined amount of time.

"Everyone is pretty shaken up. On our end, we’ve started the process of testing for vitamin E acetate, so we’re quite a bit ahead of the curve," he said, noting the state still has to approve the testing methods used by the lab. "We can dedicate a machine to vitamin E acetate testing. I don’t anticipate it slowing us down too much."

State health and marijuana regulatory officials said the retesting was mandated out of an abundance of caution to prevent more cases of EVALI.

“As always, our primary goal is to protect the public’s health,” said Marijuana Regulatory Agency Executive Director Andrew Brisbo. “The collaboration with our public health partners over the last several months has resulted in the issuance of these rules, which will increase consumer confidence in the regulated supply of marijuana products intended for inhalation.”

The rules announced by the state also prohibit the Vitamin E acetate additive from being used in the future production of vapes and mandate that clearly defined labels listing all ingredients be placed on all vape products. The state will be keeping a closer eye on processing facilities that make vape products to ensure that the additive isn't being used.

“Prohibiting additives that could cause harm to human health is a step forward in efforts to protect the public during this outbreak of lung injury cases,” said Dr. Joneigh Khaldun, chief medical executive and chief deputy for health for the Michigan Department of Health and Human Services.

While dispensary owners said they understand the desire to safeguard the public health, they're also frustrated at yet another roadblock.

"I don’t disagree that the state felt like it needed to take some sort of safety precaution to make sure the public is comfortable with vaping products, but I don’t think there have been any instances of any licensed products causing illness," said attorney Denise Pollicella, who has several cannabis clients. "It’s a bit of an extreme measure. Ceasing the sale of everything already in the stores is going to be pretty devastating to an industry that’s not self sustaining yet."

The mandate, however, is a setback for medical marijuana dispensary owners who are hoping to begin transitioning to the recreational market.

The state's Marijuana Regulatory Agency just awarded the first five recreational licenses on Tuesday and is allowing business owners to transfer up to 50% of their inventory from the medical to the recreational market once they receive a state license.

Dispensary owners have been stocking up on supplies of marijuana flower, concentrates and vapes in order to accommodate an expected surge in sales once they're approved for a state license.

And now, a portion of their inventory is going to have to go back to testing facilities, which are already dealing with a backlog ranging from seven to 30 days. And they won't be able to sell vapes in either the medical or recreational market until that testing is done. It's unclear how much the testing and repackaging of those products will cost and who will have to bear that burden.

Mike Elias, the owner of the Common Citizen line of dispensaries in Battle Creek and Flint and plans for five more, has been a proponent of additive-free vapes, but feels the latest state mandate is only going to push marijuana users back to the black market.

"Commercial operators won’t risk their licenses by adding cutting agents to their products, yet we are now adding more tests that do nothing but create more disruption to a space that is already choked with delay, constant changes in regulations, and what seems to be favoritism toward black and gray market activities," he said.

Stuart Carter, owner of the Utopia Gardens marijuana dispensary in Detroit, said the mandate will have a cascade effect that will cause some businesses to have to shut their doors.

"It's 30% of my business," he said. "So a customer will come in looking for a vape pen and we don't have it, so they'll buy flower and there's a massive shortage already of flower.

"This is a knee-jerk reaction by the state because most of the THC issues are from the black market, not by the tested market."

Omar Hishmeh, who received three of the first five recreational marijuana licenses awarded by the state on Tuesday, said the halt in sales will provide a challenge to his plans to open the Exclusive Brands dispensary in Ann Arbor on Dec. 1.

"Whatever the state requires, we’re going to go ahead and do. There’s nothing we can do about a halt in sales other than get the testing behind us," he said. "But I still believe we will be on track to be the first shop to open.".

The Centers for Disease Control and Prevention (CDC) has confirmed 42 deaths and more than 2,000 cases of EVALI across 49 states, the District of Columbia and one U.S. territory. All cases have a history of vaping products containing THC, nicotine, or a combination of THC and nicotine. The CDC announced the results of recent testing performed on bronchoalveolar lavage (BAL) fluid samples from 29 EVALI patients in 10 states, including Michigan. Vitamin E acetate was identified in 100% of the BAL samples tested.

Michigan has recorded 56 cases of EVALI, including one death and one case of a 17-year-old teenage boy who recently underwent a double lung transplant at Henry Ford Hospital in Detroit. He is believed to be the first person to undergo such a surgery for a vaping-related illness.

“It is absolutely vital that patients and consumers know, with certainty, the ingredients in the products that they are using,” said Lt. Gov. Garlin Gilchrist. “These rules require stringent testing and will continue to prioritize the health and safety of Michiganders.”

The rules, which will last six months, come after Michigan became the first of seven states to curtail or outright ban flavored nicotine vapes in an effort to stop an epidemic of teen vaping. That ban only lasted two weeks, however, before a lawsuit was filed and a state Court of Claims judge reversed the ban.

Gov. Gretchen Whitmer and Michigan Attorney General are appealing that preliminary injunction.

The administration of President Donald Trump also announced an impending ban on flavored vapes, but has since backed away from such a ban.

Contact Kathleen Gray: 313-223-4430, kgray99@freepress.com or on Twitter @michpoligal.