Massachusetts Cannabis Companies Can Retest, Sell Previously Quarantined Vaping Products

Editor’s Note: This article was updated from its previous version at 4 p.m. Aug. 4, 2020.

More than 600,000 vaping products quarantined in Massachusetts last year can now be retested and sold or reclaimed and repurposed into other products if they meet safety standards, according to a Aug. 3 press release from the Cannabis Control Commission (CCC). 

After three rounds of testing and a public comment period launched in July, the CCC concluded that businesses may retest and sell products, which must include modified warning labels that explain the product was previously quarantined and rested. If products do not meet safety standards after two attempts to remediate, licensees have to toss the product, according to the press release. 

The CCC issued the vape product quarantine back in November, though the state’s temporary ban on vaporizer products that began in September effectively stopped the sale of more than 619,300 products in both the medical and adult-use markets between Sept. 25 and Dec. 12, 2019. The decision was in response to the e-cigarette, or vaping product use-associated lung injury (EVALI) outbreak that sickened thousands of people in all 50 states and killed nearly 70. The Centers for Disease Control and Prevention determined that the primary cause of the once mysterious lung illness was vitamin E acetate, a cutting agent usually found in illicit market cannabis devices. 

“Since the Commonwealth declared a vaping public health emergency last fall, the Commission has dedicated significant energy and resources to investigating the additives, hardware, and storage practices that licensees use to produce and sell cannabis vaporizer products,” Commission Executive Director Shawn Collins said in the Aug. 3 press release. “Fortunately, repeat tests of licensed product samples did not return any detectable levels of [vitamin E acetate]; unfortunately, they did establish that heavy metal contamination may increase in vaping products over time.”

According to an amended quarantine order released Aug. 3, the first round of tests included only a screen for vitamin E acetate, and none was found in the 91 vaporizer samples that came from 19 licensees. A second round of testing included screening for both vitamin E Acetate and heavy metal levels from 126 vaporizer products from 22 state licensees. Of the tested products, approximately 13 were found to have heavy metal concentrations at unsafe levels. The third phase of testing “did not conclusively establish the root cause of elevated heavy metal contamination,” according to the amended order, and they were unable to repeat results from the second round.

“Our testing that we’ve conducted as a commission did not detect any vitamin E acetate, which is obviously a good sign and encouraging news, but we did identify some pretty concerning levels of lead,” Collins told Cannabis Business Times in July. “Upon retest though, the results are a little all over the map. Where something that might have failed for lead–and failing for us would be above 500 parts per billion–didn’t fail the second round. So, it’s sort of a hit or miss environment.”

Meanwhile, cannabis companies in the state say millions of dollars in potential revenue was frozen while they waited for months for a decision from the CCC.

Ellen Rosenfeld, president of CommCan, a vertically integrated cannabis company licensed under the medical and adult-use programs with two dispensaries, told Cannabis Business Times she is “thrilled” with the CCC’s decision and called it a “best case scenario,” as she predicted the only options for companies would be to remediate the quarantined product to create new cartridges or destroy them.

Rosenfeld says the company is weighing its options, but if they do find that after retesting, the products are safe for consumption, she says they will need to be heavily discounted. 

“We are starting testing today [Aug. 4]. We don’t want to wait another minute. Another minute is another day older,” she says. “The discount would have to be significant because you’re competing with your own brand new product.”

However, she said she is happy to move forward, whether CommCan sells the original products, remediates them to create new cartridges, or even if the company has to throw the product out.

“I’m grateful to have this out of my vault to free up storage space and to move it,” she says. “It’s up to me to figure out how to move it. Prior to yesterday, I had no control. Now it’s all under my control.”

Brandon Pollock, CEO and co-founder of Theory Wellness, which is vertically integrated, licensed in both the medical and adult-use markets and operates three dispensaries, told Cannabis Business Times in July that the quarantine and delays have “been very negative” for the company, as he estimates Theory has more than a million dollars in inventory that’s been on hold for about nine months.

“It’s been really challenging just knowing that the inventory is just sitting there, and we had to buy and make new inventory, with the replacement cost to basically to keep the vape sales going when we were able to start selling them again,” Pollock says. “We very much look forward to a process finally to retest and sell the products when they are deemed safe.”

The commission also tested a sample of 20 empty vaporizer cartridges from seven cannabis licensees, according to the CCC order, and although the devices tested positive for lead, cadmium and arsenic, “the testing method applied raises concerns about the validity of the results. … Due to limited isolation of the parts within the vaporizer device, controlled and reliable data was not produced.”

“This new order seeks to strike a balance between those products that can be retested or remediated safely for sale or repurposing with proper warning to patients and consumers, and those that cannot,” Collins said in the press release. 

Representative samples from either quarantined production batches or new samples from reclaimed products must pass tests for vitamin E acetate and heavy metals, according to the commission. Those that pass inspection need to include labels that the products were previously quarantined and passed retesting for vitamin E acetate and heavy metals, while products that still test at unsafe levels after two attempts to remediate must be disposed of, the CCC stated in the press release.