SBOH - Board Meeting
(June 10, 2020) - Vitamin E Acetate Prohibition

Board members voted to extend their emergency ban on use of vitamin E acetate in vapor products for a third time while permanent rulemaking to formalize the prohibition continued.

• The Board passed an initial emergency ban in mid-November 2019 following Executive Order 19-03 and in response to an asserted link with vaping associated lung injuries (VALI) which were occurring nationwide and in Washington state.
  • As emergency rules expire after 120 days, SBOH voted to extend the ban on March 11th. At that time staff acknowledged that legislation banning the compound from non-cannabis vapor products was unlikely to pass in the 2020 legislative session.
    • Vice Chair Thomas Pendergrass called for permanent rulemaking during the motion to extend the ban in March, as he was "not comfortable with us doing this over and over for the next year."
  • At an SBOH Health Promotion Committee meeting on May 19th, staff confirmed the Board had filed a CR-101 to initiate more permanent rulemaking prohibiting vitamin E acetate on May 6th.
  • The Washington State Liquor and Cannabis Board (WSLCB) revised and extended their own emergency rules for vapor products on May 27th responding to the SBOH’s actions as well as passage of HB 2826, legislation granting WSLCB more power to regulate tetrahydrocannabinol (THC) vapor products and cannabis products more generally.
• SBOH Chairman Keith Grellner invited Health Policy Advisor Samantha Pskowski and Department of Health (DOH) Director of Policy and Legislative Relations Kelly Cooper to introduce the emergency rulemaking (audio - 3m, video).
  • Pskowski began with a short background, stating that vitamin E acetate had been “strongly linked to this [pattern of] lung injury.” She noted the prior emergency rules and the “CR-101 to explore permanent rulemaking...filed on May 6th.”
  • Saying that the current emergency rules were set to expire on July 18th, Pskowski shared Secretary of Health John Wiesman’s recommendation “that the board adopt a third emergency rule to maintain this prohibition...as the permanent rulemaking process continues.”
  • Beyond that action, she said SBOH “has the authority to adopt an additional emergency rule as it has filed a notice of intent to adopt the rule as a permanent rule.”
    • Previously, Assistant Attorney General (AAG) Lilia Lopez provided guidance to the Board that replicated emergency rules needed “to be based on changed conditions” and asserted that new information more strongly correlating vitamin E acetate to VALI met the statutory requirement.
• Pendergrass wanted confirmation that the emergency and permanent rules were limited to banning vitamin E acetate “alone” rather than “all additives.” Pskowski confirmed his understanding, saying the emergency action would not perpetuate the THC and non-THC flavored vapor product ban which SBOH approved in October 2019 at the height of the public health scare (audio - 1m, video).
• Cooper, acting as Wiesman’s designee, moved to adopt the emergency rule and was seconded by both Pendergrass and Board Member Fran Bessermin (audio - 4m, video).
  • Before voting, Pendergrass explained that “it is my hope that this will be the last of this set of these emergency rules. We’ve now been doing this for almost eight months.” He urged quick creation of a permanent rule so that “next time, we don’t have to have this again.”
  • Grellner countered that the vitamin E acetate ban had “not encountered any resistance or pushback even from the vapor industry” some of whom had sued SBOH over their authority to pass the earlier flavor ban. The suit was withdrawn in March, according to Lopez. 
• The Board voted unanimously to extend the ban. Board Members Stephen Kutz, Kurt Hilt, and Jim Jeffords were absent.

Information Set