In the cannabis industry the CDC recently identified 450 cases of lung disease in people who used vaping products. It indicated that many of the patients suffering from the disease used products containing THC, while others had used a combination of nicotine and THC. On Thursday, September 5, 2019, New York state officials said the illnesses may be related to Vitamin E acetate, but stressed that “No one substance, including Vitamin E acetate, has been identified in all of the samples tested,” according to Stephanie Caccomo, an agency spokeswoman.

So what do we know?

Three deaths have been reported, one each in Oregon, Illinois and Indiana. We know that a preliminary report of 53 patients with the lung illnesses in Illinois and Wisconsin found that 84 percent had used a product containing THC. We know that Vitamin E acetate, which is the focus of New York state’s investigation, is often used in nutritional supplements or on the skin for its antioxidant effects. On Friday, the FDA stated that while it did not have enough data to conclude that Vitamin E acetate is the cause of the injuries, “the agency believes it is prudent to avoid inhaling this substance.” So where does that leave the cannabis industry and what should companies be focused on?

If litigation were to arise, and it often does when injuries occur, what do companies need to be aware of and how should they prepare? If litigation were to arise, it’s likely we would see some variation of a products liability lawsuit. In New York, for example, products liability law on design remains a not reasonably safe standard. Products that are dangerous to use in society are not foreclosed so long as they are reasonably safe. What that means will depend on the product, its ambit of use and misuse, the steps needed to be taken to make its use reasonably safe, the precise factual circumstances in the case and the interface of the plaintiff’s conduct.

In the present cases of lung disease that appear tied to vaping, clinicians identify clinical similarities in illnesses among people who vape. Many, if not most, of the patients were younger individuals and generally healthy. According to the CDC, the patients exhibited similar symptoms, such as coughing, chest pain or shortness of breath appeared in the days and weeks prior to hospitalization. Most concerning for the e-cigarette and cannabis industry is that all patients reported using e-cigarettes, which officials define as battery-operated devices that heat a liquid and deliver an aerosol product.

Clinicians in Utah and North Carolina said they had identified the presence of abnormal immune cells in the lungs of some patients, which could be a “useful marker” for a diagnosis of a rare form of pneumonia known as lipoid pneumonia, according to findings reported by University of Utah Hospital clinicians in the New England Journal of Medicine on Friday[1].

The presence of the abnormal cells in the lungs can occur when either oils or lipid-containing substances enter the lungs, according to pulmonologist and critical care physician Daniel Fox at WakeMed Health and Hospitals in North Carolina.

Wisconsin and Illinois health departments investigated 53 reported cases. ,Most of the patients were young men and 50 of these patients were hospitalized. More than 25of these patients required intensive care and all of the patients used e-cigarettes or related products within 90 days of getting sick. Of these 53 patients, 15 stated they only used THC products. This is concerning because even if the problem is not specifically related to cannabis oil, but rather to the inhalation of the oils generally used in e-cigarettes, cannabis companies are likely to face litigation.

E-cigarette aerosol generally contains fewer toxic chemicals than conventional cigarette smoke, but is still not considered harmless. It can expose users to substances such as heavy metals and other harmful ingredients. Many of the chemicals in e-cigarette liquids may undergo thermal degradation when they are heated, producing new compounds with potentially harmful consequences. “Alone or in combination, these substances could result in a variety of pulmonary illnesses.[2]” The illnesses could include lipoid pneumonia and could result in severe lung injury and a serious condition known as acute respiratory distress syndrome. .

E-cigarettes are increasingly being used to cannabis oils and concentrates. The doctors noted that the patients in both Wisconsin and Illinois presented with similar clinical findings and progression of the disease, suggesting a similar pathophysiological mechanism of lung injury.

Given the surge in these types of lung injury cases, cannabis producers, e-cigarette manufacturers and manufacturers of other non-cannabis oil should revisit their products and what they know about its impact on consumers. Everyone remembers the big tobacco litigation over the last 30 years. Given the continued rise and popularity of e-cigarette use, especially within the cannabis space, it is not unreasonable to think such cases will not be forthcoming. The question is, are cannabis and e-cigarette companies prepared?