Cannabis Vaping Linked to Serious Lung Injuries – Is a Product Liability Suit Next?

Dani Alexis Ryskamp, J.D.

Written by
— Updated on June 25, 2020

Cannabis Vaping Linked to Serious Lung Injuries – Is a Product Liability Suit Next?

In 2019, serious lung injuries linked to vaping harmed dozens of people and killed as many as 20 nationwide. Many of these injuries were linked to the use of cannabis vaping cartridges.

Investigations revealed that at least some of the injuries and deaths may be linked to the use of vitamin E acetate as a thickener in the cannabis cartridges. As evidence mounts against the use of vitamin E in vaping products, is a product liability lawsuit on the horizon?

How Did the Injuries Occur?

Vitamin E is the name given to several related chemicals known as tocopherols. They’re commonly added to foods as a dietary supplement or included in cosmetics as a form of thickener. Tocopherols can be extracted from vegetable oil and from chemicals derived from petroleum, some of which are toxic.

When ingested, Vitamin E provides an essential source of nutrition that improves immune function and reduces blood clotting. It may play a role in reducing the risk of coronary artery disease, certain cancers, eye disorders, and cognitive decline, according to the National Institutes of Health.

The fact that Vitamin E can be ingested safely, however, does not mean that it can be inhaled safely as well. Because Vitamin E is a lipid, it can cause serious lung injury when inhaled, including lipoid pneumonia.

When inhaled, lipids cause injury by disrupting the function of the fluids that line the surface of the lungs. These fluids, known as lung surfactant, allow oxygen to move from the air into the bloodstream. When the function of lung surfactants is impeded, oxygen cannot move into the bloodstream, which can result in serious injury or even death.

Where Would a Products Liability Lawsuit Focus?

Currently, none of the major manufacturers of nicotine-containing vape fluids or cartridges use Vitamin E acetate in their products. For these companies, the most common carrier for nicotine is propylene glycol.

Most often, Vitamin E acetate is used to thicken the contents of vaping cartridges, particularly those that contain low-grade THC oil. Many of the vaping cartridges that fall into this category are black-market THC cartridges, but some are marketed and sold by companies in states where the use of marijuana and related compounds (including THC) is legal.

Vitamin E came on the market as a THC oil cutting agent near the end of 2018. By mid-2019, it was estimated that over 40 companies sold a cutting agent that contained tocopheryls and that up to 60% of THC vape cartridges in the US might contain Vitamin E acetate.

If the Vitamin E to which the injured vaping patients were exposed was derived from petroleum, a product liability lawsuit might also explore the effects of certain chemicals involved in that process on human health.

For example, one petroleum-derived chemical from which synthetic Vitamin E may be made is trimethylhydroquinone. A related compound, hydroquinone, has been sold as a skin lightening agent in the US, but it has been banned in the European Union due to its links to cancer. While the FDA has not banned it for topical use, research indicates it can cause injury or illness if inhaled.

Which Experts Might Appear in Vaping Product Liability Cases?

As in any product liability claim, a case involving vape cartridges is likely to focus on one or more of three areas: Vape cartridge or fluid manufacture, design, and warranties or failure to warn users that the vape fluid might cause harm.

One of the first questions to be addressed in any vaping product liability case is whether a particular additive can be traced to a particular plaintiff’s injury or death. Drawing this connection may be difficult and is likely to demand the attention of one or more experts in pulmonology, pharmacology, and related fields.

Experts with backgrounds in chemistry or related fields may also be necessary in order to analyze the contents of a particular vape fluid or cartridge. Their assistance can help establish exactly what the injured person inhaled, which is a first step in exploring how those chemicals may have operated to cause harm once they entered the body.

In addition, experts on public health or epidemiology may be required to help clarify how vaping has spread. These experts may explore why certain additives have become popular. In cases seeking to hold a manufacturer or distributor accountable, these experts may also help establish the link between the manufacturer’s or distributor’s behavior and the injuries suffered.

To date, vaping-related injuries have created more questions than answers. Early product liability cases will attempt to answer certain questions. The participation of the right expert witnesses will be crucial in shaping the results of early cases and of those that follow.

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