Illegal Vapes are Killing People. Blame the 'Legal Market' 

Yes, cannabis is legal, but not in Kings County, where seven black market buyers recently encountered potentially fatal vaping products.

click to enlarge These vapes were the sources of illness in New York.

These vapes were the sources of illness in New York.

Even if they didn't say it explicitly, many people envisioned the legalization of pot in California as an abrupt change. On December 31, 2017, there was the black market, and on January 1, 2018, the black market would begin to disappear, and legal pot shops would spring up everywhere.

But as we now know all too well, it hasn't worked out that way. The black market is thriving — in some ways like never before — and the legal market is struggling. And now, people are actually getting killed.

As noted in this space last week, there's been a recent spate of severe lung ailments and several deaths reported across the country, caused by cannabis vapes bought on the black market. As of Monday, 57 cases were reported in California out of several hundred across 33 states. At least five have died, including one person in Los Angeles County. The likely culprit, according to both state and federal health officials: illicitly produced vaping products, perhaps containing contaminants or made with oils or other ingredients that shouldn't be inhaled (a synthetic form of Vitamin E oil is suspected in many of the cases).

As I wrote last week, the legal, adult-use market is, in a way, responsible for this. Legal cannabis has created a market for manufactured products like vapes and gummies. If not for that legal market, there would likely be far fewer pirates out there making what look like legal vapes — complete with legit-looking packaging — but were actually made half-assedly by random cretins. When it comes to vapes, half-assed production can mean illness and death. Making vape cartridges properly is a fairly sophisticated endeavor, which is why the legit market is so highly regulated, and why only businesses with a fair amount of capital to buy the needed equipment and hire people with expertise can even get into the business. Shoving oil into vape carts and making them look just like the real thing is relatively easy. There are even services online where the pirates can buy legitimate-looking packaging, as happened with many of the cases where people took ill.

But there's another way in which the legal market is responsible: in California, that market is dysfunctional, sending consumers flocking to underground sellers. Taxes are high, which means prices are high. The cost of regulation, while necessary, is also high, and perhaps overburdensome. But perhaps worst of all, the law enabling legalized pot allows cities and counties to ban the sale of legal cannabis. In about 70 percent of the state's jurisdictions, there are no licensed sellers. One such "cannabis desert" is Kings County in the Central Valley, where the first seven reported Californian victims of the lung ailment purchased the black-market vape cartridges that sent them to the hospital. Some "legal market."

It's not like nobody knew the black market would continue to thrive, although it was hard to guess what that would mean, or how severe and persistent the problem would be. Before Proposition 64 passed in 2016, leading to the Adult Use of Marijuana Act that allowed legal sales to begin in January 2018, "it was estimated that 33 percent [of sales] would remain black market," said Etienne Fontan, owner of the Berkeley Patients Group and a board member of the National Cannabis Industry Association. As it turns out, he added, "I'd say that number is extremely conservative."

The overarching term "black market" encom­passes both the skeezy characters making vapes in their garages and people who have been farming pot for decades without hurting anyone, plus the local weed dealer who sells pals quarter-ounces. The latter are different from the former, even though all are "black market" participants.

Fontan notes that nobody who was involved in selling or consuming pot before legalization can now credibly rail against "the black market" as a whole. "How can we, the legal entities, criticize those that dwell in the world we helped perpetuate, and existed in for decades?" he asked. Few people ask themselves such questions when they complain about operations like Weedmaps, a megapopular website that has continued to direct users to black-market vendors, as well as legit ones. After nearly two years of pressure, that company recently announced that it would cease doing business with illicit vendors (though it hasn't said when). But Weedmaps was operating for eight years before Prop 64 even passed, and few complained about it until there was a legal market to protect. It might be uncool that Weedmaps has continued facilitating the underground market, but it's not hard to see why they felt they had to do so: that's where the money is.

"Now it's up to the regulators to regulate, if that is their objective," Fontan said. But "as they drag their collective feet, the legal market will scale up in time, but now with a large part of the market staying underground and flourishing as it did prior to 64."

Moving from a black market to a white one necessarily involves going through a gray area. That's where we are now. We might be here for quite a while yet. In the meantime, we should at least try to keep people who just wanted to get high from dying needless, painful deaths. 

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