A Pennsylvania cannabis vape recall is now definitely off and products are back in dispensaries after a Commonwealth Court judge found last week that there was no scientific basis for the ban on recalled products, first issued last February.
“Given the unchallenged scientific date and testimony upon which the Court has based its last two rulings, and the likelihood MMAPS will prevail upon appeal, it is our sincere hope that the Department of Health comes to the table soon to discuss expeditiously resolving this matter in advance of a protracted litigation process,” said Judith Cassel, lead counsel for the group of cannabis operators who had organized under the name Medical Marijuana Access And Patient Safety, Inc. (MMAPS).
As a result of the recall, based on a law passed in November 2021, Pennsylvania’s Department of ordered a statewide recall of cannabis vape cartridges impacting about 330,000 units of product valued at about $18 million, according to testimony from the MMAPS lawsuit. Medical cannabis sales is legal in Pennsylvania.
Perhaps indicating how weak they thought their case was, attorneys for the state chose not to present any scientific evidence or witnesses during the case’s hearing, instead leaning on case law to argue that the petitioners had no standing, or right, to bring the action. In his decision in favor of the injunction, Commonwealth Court Judge Michael Wojcik slam dunked the state’s argument in his decision, stating that because attorneys for the state brought no witnesses to argue against the plaintiffs’ testimony, “Respondents’ argument that Petitioner’s asserted harms are speculative lacks merit and the Court finds that Petitioner has standing to bring this action.”
Pennsylvania cannabis operators have expressed concern that the state’s vape recall, would lead confused customers to believe there were health concerns with the vapes. Jushi Holdings, which immediately put products back on the shelf the day after the ruling, took particular pains to point out that any health concerns were unwarranted.
“In fact, the Court noted the Department itself approved the recalled products for patient use following stringent quality and safety testing and found no evidence of a single adverse event related to any recalled product.” said Jim Cacioppo, Chief Executive Officer, Chairman, and Founder of Jushi Holdings, in a written statement.
Because Judge Wojcik’s order is part of a preliminary injunction, litigation will likely continue as MMAPS seeks a permanent injunction. Last spring, when sent to mediation by Judge Wojcik, attorneys for the state refused to negotiate, according to Meredith Buettner, executive director of the Pennsylvania Cannabis Coalition. It is unclear if the state will negotiate now, or go back to fight in court.
“Should DOH remain disinterested in coming to the table, MMAPS’ commitment to vigorously litigate this matter will not waiver,” said the organization in a released statement.