Duane Morris partners Neville Bilimoria and Seth Goldberg were quoted in an article in Chicago Lawyer magazine discussing legal issues related to the recent spate of vaping-related illnesses and deaths. Read our partners’ thought leadership on the Duane Morris website or the full article on the Chicago Lawyer website (subscription required).
One day after a federal judge dismissed a lawsuit challenging the U.S. Food and Drug Administration’s (FDA) regulatory authority over e-cigarettes, a published study funded by the National Institutes of Health (NIH) reported that more than 20% of High School seniors in the U.S. reported vaping THC (the psychoactive cannabinoid found in marijuana) in 2019.
According to the study, 20.8% of 12th graders reported marijuana vaping in the past 12 months, while 14% reported marijuana vaping in the past 30 days. (These figures, in 2018, were 13.1%, and 7.5%, respectively.) According to the report, the absolute increases from 2018 to 2019 in 12th graders who reported vaping marijuana within the previous 30 days were “the second largest … ever tracked by Monitoring the Future for any substance in its 45-year history[,]” only outpaced by the increase in nicotine vaping from 2017 to 2018.
Other age groups showed increases in THC vaping as well; the percentage of 10th graders who reported marijuana vaping in the past 12 months increased from 12.4% in 2018 to 19.4% in 2019 and the percentage of 10th graders who reported marijuana vaping in the past 30 days increased from 7% in 2018 to 12.6% in 2019. Moreover, the percentage of 8th graders who reported vaping marijuana in the past 12 months increased from 4.4% in 2018 to 7% in 2019; for use in the past 30 days, the percentage increased from 2.6% to 3.9% over the same time period.
Based on the results of the just-released study, Judge Guirola’s opinion–in which the court held that the delegation of authority to the FDA under the Family Smoking Prevention and Tobacco Control Act was not unconstitutional–could be afforded renewed significance. Both the federal court’s order and the NIH-funded study documenting the rise in THC vaping among adolescent come in the midst of heightened scrutiny of e-cigarette and vaping products generally, in light of the widely reported lung-related health issues stemming from use of certain vaping products.
Given the new data from the NIH-funded study and the FDA’s recently confirmed regulatory authority over the products alleged to be causing the lung-related illnesses, it appears likely that calls for regulators to scrutinize and crack down on the manufacture and sale of e-cigarettes and vaping products will only grow.