Florida’s vaping ‘hole’: Nobody has authority amid health crisis

"The department does not appear to have the authority to do anything.”
In this April 11, 2018, file photo, a high school student uses a vaping device near a school campus in Cambridge, Mass.  [AP Photo | Steven Senne]
In this April 11, 2018, file photo, a high school student uses a vaping device near a school campus in Cambridge, Mass. [AP Photo | Steven Senne] [ STEVEN SENNE | AP ]
Published Sept. 20, 2019

A college cheerleader in Orlando could lose his left lung from illness his family links to vaping from a Juul device. In Jacksonville, a 17-year-old was hospitalized to treat breathing problems linked to vaping.

Amid an explosion of vaping-related lung illnesses and related deaths nationwide, Floridians remain on high alert. A shocking seven deaths and 530 hospitalizations in 38 states have spurred state lawmakers to propose raising the legal age to buy vaping products, and the state’s health and education departments are readying to roll out a three-hour anti-vaping course for Florida’s schoolchildren.

While the state Department of Business and Professional Regulation regulates tobacco, and the Florida Department of Agriculture and Consumer Services’ Division of Food Safety regulates ingested products like CBD food and drink, the state is left with a major question.

Who is responsible for regulating CBD vaping products that line shelves at head shops and convenience stores statewide?

According to Steven Hall, general counsel for the state’s Department of Agriculture, “There appears to be a hole.”

The Department of Business and Professional Regulation “has made it very clear to us that their regulation over anything vaped ends with tobacco products,” he said at a hemp advisory committee meeting Thursday morning. “Our limitations regarding CBD ends with ingestion. The department does not appear to have the authority to do anything.”

Although the exact cause or causes of the reported illnesses remain under investigation, products containing THC — the naturally occurring component in marijuana that produces a high — are the most commonly reported e-cigarette product among surveyed patients (84%).

Because of the seriousness of the investigation into vaping illness by the Food and Drug Administration, the enforcement arm of the agency has begun a parallel, criminal probe into the supply chain of companies that make nicotine vaporizer.

President Donald Trump’s administration has banned flavored e-cigarettes amid the rising number of vaping-related illnesses and deaths, but officials have left out marijuana products like CBD. Because marijuana is illegal under federal law, Congress and the Food and Drug Administration have no oversight when it comes to the manufacturing and sale of CBD and other cannabis derivatives like they do with nicotine and e-cigarettes.

According to a major case study published last month in the New England Journal of Medicine, those who vape CBD have faced dire symptoms, too.

An investigation published earlier this week by the Associated Press revealed that of 29 vape products sold as CBD around the country (including some from Florida), 10 contained types of dangerous synthetic marijuana — commonly known as K2 or spice — and others had no CBD at all. The CBD compound, unlike its psychoactive sister THC (tetrahydrocannabinol), won’t get you high but has been anecdotally reported to have calming and anti-inflammatory effects.

Hall says the apparent loophole in regulation “concerns the department greatly because of some of the recent news we’ve been hearing about it.”

The department has started a conversation with lawmakers to notify them of the issue, Hall said, but because of the way the recent hemp law was written, the department’s ability to regulate is limited.

A spokesman for the state clarified that the Department of Business and Professional Regulation oversees tobacco products, but nicotine products are not within the scope of the division’s regulatory purview, including products that contain CBD.

Sen. Rob Bradley, who wrote the hemp bill that passed earlier this year, said his legislation was “the first step in a multi-year process” and that he’s open to recommendations from the Department of Agriculture or the Department of Business and Professional Regulation.

“There are going to be issues that arise, and there’s going to be things I anticipate to address every session,” said Bradley, R-Fleming Island. “This appears to be one of them.”

Bradley, who also serves as the Senate budget chair, added that vaping and CBD products should be addressed independently of the hemp bill, too. While he’ll have his hands full “with the budget and a couple other issues,” he’s supportive of his colleagues who choose to file bills to address the growing public safety concerns around vaping.

Vape enthusiasts in Florida say shops are still hawking products that cost far less than the more regulated vape cartridges patients can purchase at a licensed medical marijuana treatment center.

Thomas Ettore, a 27-year-old customer service representative from Daytona Beach, shops at both.

He has a medical marijuana card to treat back pain resulting from a motorcycle incident but also buys CBD vape cartridges from vape shops in town. In Ettore’s experience, flavored cartridges from vape shops burn quicker while cartridges from licensed medical marijuana treatment clinics feel “a lot cleaner.”

CBD vapes at treatment centers include listed ingredients and lab testing information, whereas vape shop or retailed CBD is often more mysterious. He thinks an opened market like legalized recreational marijuana would help encourage people to buy better, safer, more regulated CBD products at more competitive price.

The black and “gray” markets can be mysterious when it comes to the products they use.

“The medical process is very expensive,” he said. “With the vape shops, a lot of them don’t have testing. You need to look at the companies that are actually producing the CBD and really research them.”

Some of those in the industry would welcome more regulation.

Brett Puffenbarger, a 32-year-old hemp consultant from Orlando, said while he is an advocate for small government, people have the right to know what they are putting into their bodies, whether it’s from a treatment center or otherwise.

“Every other thing I put in my body has a full list of ingredients, even a Flintstones vitamin,” he said. “It’s ridiculous that in this industry that I love and support, I don’t have that.”

Puffenbarger said the Department of Agriculture is the most capable of regulating CBD because “they are capable of speaking the language,”

“They at least know what they’re trying to regulate,” he said.

Jason Gray, 37, is a chef from Clearwater who uses medical marijuana for neurodegenerative issues. He said he’s always been against CBD products that come from places other than medical marijuana treatment centers, and that the state Department of Health should be regulating the substance to prevent more people from falling ill.

“I have been anti-non-dispensary CBD since I became a patient,” Gray said. “I can literally mix whatever I want in my bathtub … and sell Jason’s Bathtub CBD legally. That’s the way regulation for vapes is.”