Utah lawmaker calls for banning vape flavors, testing for illegal substances in e-cigarette products

(Trent Nelson | Tribune file photo) Vape mods at The Lake Smoke & Vape shop in Pleasant Grove on Wednesday Sept. 11, 2019. A Utah lawmaker is looking to crack down on the industry by banning flavored e-cigarette products.

Amid national reports of vaping-related illnesses, a Utah lawmaker is looking to crack down on the industry by banning flavored e-cigarette products, requiring additional inspections and testing for the presence of illicit drugs.

Rep. Paul Ray, R-Clearfield, said he’ll also encourage the state’s attorney general to explore legal action against the vaping industry and ask state and local health officials to ramp up enforcement of the rules already on the books. Ray, a crusader against e-cigarettes, said his longstanding concerns have been borne out by the recent news that 35 Utahns are suffering from severe lung diseases associated with vaping.

“We realized that vaping wasn’t safe. And I think that ... the emergency that we’re seeing is indicative that we were correct,” Ray said during a Wednesday news conference at the Utah Capitol.

Ray and his colleague, Rep. Eric Hutchings, also shared the results of unofficial independent laboratory tests that found the presence of opioids and other illegal drugs in vape juice purchased from stores in the Salt Lake Valley. The lawmakers said the laboratory performed the testing for free at their request and — while the lab administrators said the tests are not an accurate enough sample to draw any definitive conclusions — Ray and Hutchings will use the findings to advocate for a more comprehensive, state-funded study.

“We have people dying, tens of thousands of them every year, because of opioid addictions,” Hutchings, R-Kearns, said. “And now, we’ve got it in a product that’s being sold as Froot Loops flavor to our children.”

But to Tad Jensen, manager of The Lake Smoke and Vape shop in Pleasant Grove, a ban is “a knee-jerk reaction.” He noted that epidemiologists and public health officials have been baffled by the physiological cause of the outbreak of vaping-related illnesses and do not know why cases are all of a sudden clustering.

“Cigarettes kill nearly half a million people worldwide, every single year, and no one bats an eye at those deaths because we’re used to them. We’re desensitized," he said. “But a few things start coming up in the vaping industry, where there is potential harm from vaping, and without even any concrete evidence, we’re going to jump straight to banning?”

Jensen said vape shops stock merchandise produced only in regulated labs — not home brews concocted in people’s kitchens — and was dubious of Ray’s claim that “84%” of vape products in a study of Salt Lake County merchandise tested positive for illicit drugs.

The testing cited by Ray and Hutchings was conducted by Beechtree Diagnostics, a Draper-based lab, some time between February and April, the legislators said. After a parolee tested positive for the psychotropic drug kratom and believed it was from a new nicotine vape juice he had begun to use, lab workers bought a “couple dozen” bottles of vape juice from 12 different stores, said Mike Murano, Beechtree president. Then they used test strips with indicators for various drugs, including opioids, THC and PCP.

The juices tested positive for other drugs in samples from 10 of the stores, Murano said — about 84%. But the test strips are notoriously inaccurate, he said, especially for oil-based substances such as vape juice.

“It’s a coin toss," Murano said. "I would not use that information as scientifically valid.”

Accurate testing would require Beechtree to dedicate equipment exclusively for vape juice and would cost tens of thousands of dollars, Murano said. After his lab’s attempt to test the substance, he said he called a number of other labs but found none that could easily or accurately test vape juice.

“The technology’s available, but it hasn’t been set up to look for those things [in vape juice] because nobody’s asking for it,” he said.

The parolee who protested his test result stopped vaping and passed a drug test a week later, Murano said. The man could have lied, Murano acknowledged. But, he said, the parolee became frantic at the suggestion that his vape juice was adulterated because his pregnant wife also was using it. After the clean test, lab staff believed him — and Murano said he was convinced the vaping industry was in need of more regulation.

“It shows there needs to be more investigation into what’s going on,” Murano said.

The lawmakers were not able to provide details about the brands of the products or stores where the samples were bought.

Hutchings said the test results are in the hands of the Drug Enforcement Administration.

Utah DEA agent Brian Besser said his agency’s intelligence indicates that drug cartels are trying to introduce illegal substances into vape products.

“Our intelligence, DEA intelligence, here locally in the state of Utah, unequivocally shows that they are now in the process of manufacturing and infusing cartridges with THC and a lot of other illicit drugs,” Besser said during the news conference.

He did not offer any specific examples or statistics about this reported activity in Utah, but he pointed to an instance in Chicago, where investigators found large amounts of THC in what was advertised as a nicotine vape juice.

“Cartels have capitalized on that. That’s why we’re getting an influx of so many vape cartridges coming into the U.S. that contain the Baskin Robbins assortment of illegal drugs,” Besser said.

But if mind-altering drugs are so prevalent in vaping supplies, Jensen asked, why aren’t people all over Utah getting high, or going through excruciating withdrawals when they stop?

“Being in the vaping industry as long as I have and seeing as many consumers as there are in Utah, ... we haven’t actually seen any results, anything like that,” Jensen said. “If there were opioids, you have a lot of addicted people. More than nicotine-addicted. People would be going through some crazy, crazy withdrawals.”

During Wednesday’s news conference, Ray unveiled a multi-pronged plan for addressing concerns about the vaping industry.

First, he said, he’s asking local and state health officials to enforce existing prohibitions on refillable e-cigarette products.

Next, in the 2020 legislative session, he’ll advance a proposal to require batch testing of vape cartridges at the expense of the manufacturer. The products would then be stamped to indicate they’d passed muster and then taxed at a higher rate. While the industry already does product testing, Ray said his proposal would call for more aggressive quality controls and better state oversight.

Ray plans to sponsor another bill that would outlaw all vaping flavors, including menthol and mint.

“All flavoring needs to go, and it needs to be treated specifically as a tobacco cessation product, which is what they [the vaping industry] say it is in the first place,” Ray said.

His suggestion comes amid a broader move to restrict vape flavors, with President Donald Trump announcing Wednesday that his administration will propose banning thousands of flavors used in e-cigarettes.

A spokeswoman for Gov. Gary Herbert said his administration looks forward to working with lawmakers on the issue during the upcoming session.

“While we don’t fully understand the link between electronic cigarettes and recent cases of severe pulmonary illnesses across the United States, we agree that some electronic cigarettes pose a significant danger to users,” spokeswoman Anna Lehnardt said. “We urge Utahns to stop using e-cigarettes while these products are under investigation by the Food and Drug Administration and the Centers for Disease Control and Prevention.”

In an ideal world, Ray said, he would ban all e-cigarette products, but he doubts the Utah Legislature would go along with a blanket prohibition.

Last year, Ray sponsored legislation to significantly raise the tax on e-cigarettes as a way to curb their use. HB252, which would have generated more than $23 million in the second year of implementation, passed the House but died in the Senate.