The Future of Vape Litigation: Temperature Control | Cannabis Industry Journal

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After the outbreak of vaping-related diseases in 2019, temperature control issues in batteries compatible with cannabis bombs have caused new concerns for cannabis companies that are wary of lawsuits.

The 2019 outbreak of e-cigarettes or lung injury caused by e-cigarette use (EVALI) has attracted a lot of attention and has aroused scrutiny by regulatory agencies and plaintiffs’ lawyers who are eager to act as "civil prosecutors. As Tolkien said, the Eye of Sauron has now turned its attention to the cannabis vapor industry.

Due to the misinformation and negative publicity brought to the industry by the EVALI outbreak, evaporator equipment manufacturers should expect to file more lawsuits against them in 2020 and beyond. The cannabis vapor industry should also expect that as more plaintiff's lawyers enter the market, theories about the claimed defects of the product will become more complicated.

One of the flawed theories that you usually hope that the plaintiff's lawyer will pursue in 2020 is what I usually call "temperature control litigation."

This is the problem:

Although the typical additives in hemp oil were once considered safe, they degrade into toxic chemicals at higher temperatures. For example, the Vape crisis in 2019 was largely due to a cannabis oil additive known as vitamin E acetate. Although it is generally considered safe to be used in nutritional supplements or hand creams, when used in cannabis oil, researchers believe that vitamin E acetate can be degraded into toxic chemicals after atomization and cause thousands of Consumers suffer from lung disease.

Researchers do not fully understand how this process occurs, but chemists at the Royal College of Surgeons in Ireland found in a recent study that the key is to understand how temperature affects chemicals during the vaporization of e-cigarettes. Through a process called pyrolysis, studies have found that vitamin E acetate may degrade into enone when volatilized at higher temperatures, depending on the type of coil resistance, voltage and temperature configuration used in the evaporator device. (Ketene has high pulmonary toxicity and may be fatal at high concentrations, while low concentrations can cause central nervous system damage.) Similar studies have also shown that additives include propylene glycol (PG), vegetable glycerin (VG) and polyethylene two Alcohol (PEG) degrades into toxic chemicals at high temperatures-leading to Colorado banning the use of PEG for inhalable cannabis products.

Even more shocking is that this temperature control problem is not limited to additives. When smoking marijuana, it is very common for experienced users to experiment at low to high temperatures. It is believed that smoking marijuana at low temperatures (325-350°F) will produce moderately high temperatures, while smoking marijuana at higher temperatures (400-430°F) will cause euphoria and intensity. However, when cannabis is smoked at even higher temperatures (450°F+), industry experts do not really know whether or how cannabinoids and terpenes are degraded, and which combination of cannabinoids and terpenes will affect degradation and health risk. This is anyone's guess.

Due to the universal 5/10 thread, these temperature control issues are more complicated. Most consumers buy cannabis oil through pre-filled "trolleys" (cartridges), which are compatible with 90% of vaporizer batteries on the market due to the universal 5/10 threaded connector. But the carburetor battery can work at any temperature below 300 degrees to over 800 degrees. Coupled with varying battery voltage, ceramic coil quality and oil quality, the carburetor battery can produce a wide range of operating temperatures. Therefore, the user may connect the cart to the carburetor battery (the temperature is set too high), and risk pyrolysis, replace the chemical substance in his cannabis cart, and cause unknown injuries to himself.

There is no doubt that all of the above will lead to litigation. The company that produces cannabis oil will be prosecuted for failing to conduct emissions tests to properly assess the safe temperature settings for using carts. The evaporator equipment manufacturer will be sued for failing to issue warnings, instructions and adequate user manuals. Moreover, the rally calls for the marijuana vapor industry will be destructive. The plaintiff’s lawyers will accuse the industry of choosing profit instead of safety: “The cannabis vapor industry knows that cannabis oil becomes a toxic chemical when heated at high temperatures, but the industry did not conduct long-term emissions testing to assess these concerns. Instead, it chose Profit is not safety. As long as the industry makes money, no one will worry about the dangers of rising temperatures, and consumers will pay for it."

With the above background, it is important for the cannabis vapor industry to take product testing seriously. The industry needs to know if and why certain cannabinoids, terpenes and additives become toxic chemicals when they evaporate at high temperatures, and how the industry can guard against such dangers. In order to cover their base, the industry needs to issue correct warnings and user manuals for all products. It's time to act now.

Michael Preciado is a senior litigation attorney in the Orange County office of Buchalter. He is a member of the company's cannabis and cannabis industry legal team and helps clients understand the legality of the vapor, e-cigarette, cannabis and CBD industries. (Please contact Mike at 

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