Page 1 of 3 
 
RULE -MAKING ORDER  
EMERGENCY RULE ONLY  
 
 CODE REVISER USE ONLY  
 
 CR-103E (December 2017)  
(Implements RCW 34.05.350  
and 34.05.360 ) 
 
Agency:  State Board of Health  
Effective date of rule:  
Emergency Rules  
     Immediately upon filing.  
     Later (specify)  
Any other findings required by other provisions of law as precondition to adoption or effectiveness of rule?  
 Yes      No     If Yes, explain :  
Purpose:  Chapter 246 -80 WAC - Vapor products and flavors. The Washington State Board of Health has adopted 
emergency rules to ban the sale of flavored vapor products, incl uding flavored THC vapor products, to require retailers to 
display a sign warning of the risk of lung disease associated with use of vapor products, and to require reporting of cases o f 
lung injury associated with the use of vapor products from health care  providers and health care facilities.  
Citation of rules affected by this order:  
New:      WAC 246 -80-001, WAC 246 -80-010, WAC 246 -80-020, WAC 246 -80-025, WAC 246 -80-030, WAC  246-80-
040 
Repealed:  None  
Amended:  None  
Suspended:  None  
Statutory authority for adoption: RCW 43.20.050(2)(f)  
Other authority:  
EMERGENCY RULE  
     Under RCW 34.05.350 the agency for good cause finds:  
          That immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, 
safety, or general welfare, and that observing the time requirements of notice an d opportunity to comment upon 
adoption of a permanent rule would be contrary to the public interest.  
          That state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate 
adoption of a rule.  
Reasons for this finding : The immediate adoption of a rule prohibiting the sale of flavored vapor products and requiring 
sellers of vapor products to post warning signs about the risk of vaping -related lung disease is necessary to prevent and 
reduce youth and young adult exposure, especially of youth and young adults, to severe lung disease associated with the use 
of vapor products. The Washington State Board of Health has the authority and responsibility to adopt rules for the preventio n 
and control of such disease.  
 
The Centers for Disease Cont rol, U.S. Food and Drug Administration, Washington State Department of Health, and many 
other state and local health departments are currently investigating a multistate outbreak of lung disease associated with 
vapor product use. More than one thousand cas es have been reported across the United States, including eighteen deaths. 
Seven cases of lung injury have been reported in Washington state, and the number of cases is expected to grow. 
Approximately eighty percent of the cases nationwide have been report ed in individuals under thirty -five years of age, with 
sixteen percent of the cases involving individuals under eighteen years of age and twenty -one percent of the cases involving 
individuals from eighteen to twenty years old. All reported patients have a history of using vapor products. The specific 
chemical exposure(s) causing the disease remains unknown, and no single product or substance has been linked to all lung 
injury cases.  
 
Notwithstanding state law prohibiting the sale or distribution of vapor pr oducts to minors, the 2018 Washington state healthy 
youth survey indicates that the prevalence of vapor product use within the past thirty days by eighth, tenth, and twelfth 
graders in Washington has increased by sixty -nine, sixty -seven, and forty -nine per cent, respectively, since 2016, and these 
results may be an underestimate. Research consistently shows that flavors, and associated advertising, contribute to the 
appeal, initiation, and use of vapor products, particularly among adolescents and young adult s. National data show that the 
Page 2 of 3 use of flavored e -cigarettes among adolescents and young adults increased significantly from 2013 -2018. Vapor products are 
not adequately regulated and there is not sufficient standardization, testing, or oversight of these p roducts. Vapor products 
are not regulated or approved for smoking cessation.  
 
The State Board of Health's Health Impact Review of HB 1932 found strong evidence that prohibiting the sale of flavored 
vapor products will likely decrease initiation and use of vapor products among adolescents and young adults. Reducing the 
initiation and use of vapor products by youth and young adults will reduce the exposure of our most vulnerable population to 
the current outbreak of severe lung disease associated with the use  of vapor products. Requiring sellers of vapor products to 
post signs warning of the risk of vaping -associated lung disease will allow members of the public to make more informed 
decisions about the purchase and use of vapor products.  Because the outbreak  of lung disease is occurring now and 
growing, the immediate adoption of a rule prohibiting the sale of flavored vapor products and requiring the posting of warnin g 
signs is necessary for the preservation of the public health, safety, and general welfare b y reducing youth exposure, 
especially of youth and young adults, to vaping -related severe lung disease.  
 
  Page 3 of 3 Note:   If any category is left blank, it will be calculated as zero.  
No descriptive text.  
 
Count by whole WAC sections only, from the WAC number through the history note.  
A section may be counted in more than one category.  
The number of sections adopted in order to comply with:  
Federal statute:   New 0 Amended  0 Repealed  0  
Federal rules or standards:   New 0 Amended  0 Repealed  0  
Recently enacted state statutes:   New 0 Amended  0 Repealed  0  
  
The number of sections adopted at the request of a nongovernmental entity:  
New   0 Amended  0 Repealed  0  
  
The number of sections adopted o n the agency’s own initiative:  
New   6 Amended  0 Repealed  0  
  
The number of sections adopted in order to clarify, streamline, or reform agency procedures:  
New   0 Amended  0 Repealed  0  
  
The number of sections adopted using:  
Negotiated rule making:   New 0 Amended  0 Repealed  0  
Pilot rule making:   New 0 Amended  0 Repealed  0  
Other alternative rule making:   New 6 Amended  0 Repealed  0  
  
Date Adopted: 10/09/2019  
Signature:  
 Name: Michelle A. Davis  
Title: Executive Director, Washington State Board of Health  
 
Chapter  246 -80 WAC
VAPOR PRODUCTS AND FLAVORS
NEW SECTION
WAC 246-80-001   Purpose and necessity.   The immediate adoption of 
a rule prohibiting the sale of flavored vapor products and requiring 
sellers of vapor products to post warning signs about the risk of vap-
ing-related lung disease is necessary to prevent and reduce exposure, 
especially of youth and young adults, to severe lung disease associ-
ated with the use of vapor products. The board has the authority and 
responsibility to adopt rules for the prevention and control of such 
disease.
The Centers for Disease Control, U.S. Food and Drug Administra-
tion, Washington state department of health, and many other state and 
local health departments are currently investigating a multistate out-
break of lung disease associated with vapor product use. More than one 
thousand cases have been reported across the United States, including 
eighteen deaths. Seven cases of lung injury have been reported in 
Washington state, and the number of cases is expected to grow. Approx-
imately eighty percent of the cases nationwide have been reported in 
individuals under thirty-five years of age, with sixteen percent of 
the cases involving individuals under eighteen years of age and twen-
ty-one percent of the cases involving individuals from eighteen to 
twenty years old. All reported patients have a history of using vapor 
products. The specific chemical exposure (s) causing the disease re-
mains unknown, and no single product or substance has been linked to 
all lung injury cases.
Notwithstanding state law prohibiting the sale or distribution of 
vapor products to minors, the 2018 Washington state healthy youth sur-
vey indicates that the prevalence of vapor product use within the past 
thirty days by eighth, tenth, and twelfth graders in Washington has 
increased by sixty-nine, sixty-seven, and forty-nine percent, respec-
tively, since 2016, and these results may be an underestimate. Re-
search consistently shows that flavors, and associated advertising, 
contribute to the appeal, initiation, and use of vapor products, par-
ticularly among adolescents and young adults. National data show that 
the use of flavored e-cigarettes among adolescents and young adults 
increased significantly from 2013-2018. Vapor products are not ade-
quately regulated and there is not sufficient standardization, test-
ing, or oversight of these products. Vapor products are not regulated 
or approved for smoking cessation.
The state board of health's health impact review of HB 1932 found 
strong evidence that prohibiting the sale of flavored vapor products 
will likely decrease initiation and use of vapor products among ado-
lescents and young adults. Reducing the initiation and use of vapor 
products by youth and young adults will reduce the exposure of our 
most vulnerable population to the current outbreak of severe lung dis-
ease associated with the use of vapor products. Requiring sellers of 
vapor products to post signs warning of the risk of vaping-associated 
lung disease will allow members of the public to make more informed 
decisions about the purchase and use of vapor products. Because the 
outbreak of lung disease is occurring now and growing, the immediate 
[ 1 ] OTS-1757.2adoption of a rule prohibiting the sale of flavored vapor products and 
requiring the posting of warning signs is necessary for the preserva-
tion of the public health, safety, and general welfare by reducing ex-
posure, especially of youth and young adults, to vaping-related severe 
lung disease.
NEW SECTION
WAC 246-80-010   Definitions.   The definitions in this section ap-
ply throughout chapter 246-80 WAC unless the context clearly requires 
otherwise:
(1) "Business day" means any day that the department or a local 
health jurisdiction is open for business.
(2) "Case" means a person, alive or dead, diagnosed with a proba-
ble or confirmed case of a particular disease or condition by a health 
care provider or health care facility with diagnosis based on clinical 
or laboratory criteria or both.
(3) "Characterizing flavor" means a distinguishable taste or aro-
ma, or both, other than the taste or aroma of tobacco or marijuana or 
a taste or aroma derived from compounds or derivatives such as ter-
penes or terpenoids derived directly and solely from marijuana, as de-
fined in RCW 69.50.101 (y), or hemp plants that have been grown and 
tested as required by state law, imparted by a vapor product. Charac-
terizing flavors include, but are not limited to, tastes or aromas re-
lating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, 
alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A va-
por product does not have a characterizing flavor solely because of 
the use of additives or flavorings or the provision of ingredient in-
formation. It is the presence of a distinguishable taste or aroma, or 
both, that constitutes a characterizing flavor.
(4) "Department" means the Washington state department of health.
(5) "Flavored vapor product" means any vapor product that imparts 
a characterizing flavor.
(6) "Health care facility" means:
(a) Any assisted living facility licensed under chapter 18.20 
RCW; birthing center licensed under chapter 18.46 RCW; nursing home 
licensed under chapter 18.51 RCW; hospital licensed under chapter 
70.41 RCW; adult family home licensed under chapter 70.128 RCW; ambu-
latory surgical facility licensed under chapter 70.230 RCW; or private 
establishment licensed under chapter 71.12 RCW; and
(b) Clinics, or other settings where one or more health care pro-
viders practice.
(7) "Health care provider" means any person having direct or su-
pervisory responsibility for the delivery of health care who is:
(a) Licensed or certified in this state under Title 18 RCW; or
(b) Military personnel providing health care within the state re-
gardless of licensure.
(8) "Marijuana product" has the same meaning provided in RCW 
69.50.101.
(9) "Person" means any individual, receiver, administrator, exec-
utor, assignee, trustee in bankruptcy, trust, estate, firm, copartner-
ship, joint venture, club, company, joint stock company, business 
trust, municipal corporation, the state and its departments and insti-
tutions, political subdivision of the state of Washington, corpora-
[ 2 ] OTS-1757.2tion, limited liability company, association, society, any group of 
individuals acting as a unit, whether mutual, cooperative, fraternal, 
nonprofit, or otherwise.
(10)  "Principal health care provider" means the attending health 
care provider recognized as primarily responsible for diagnosis or 
treatment of a patient, or in the absence of such, the health care 
provider initiating diagnostic testing or treatment for the patient.
(11)  "Sell" means to transfer, exchange, or barter, in any manner 
or by any means whatsoever, for a consideration, and includes and 
means all sales made by any person. It includes a person engaged in 
the business of selling vapor products giving or offering vapor prod-
ucts free of charge.
(12)  "Vapor product" means any noncombustible product that may 
contain nicotine or a marijuana product and that employs a heating el-
ement, power source, electronic circuit, or other electronic, chemi-
cal, or mechanical means, regardless of shape or size, that can be 
used to produce vapor or aerosol from a solution or other substance 
including any electronic cigarette, electronic cigar, electronic ciga-
rillo, electronic pipe, or similar product or device and any vapor 
cartridge or other container that may contain nicotine or a marijuana 
product in a solution or other form that is intended to be used with 
or in an electronic cigarette, electronic cigar, electronic cigarillo, 
electronic pipe, or similar product or device including, but not limi-
ted to, marijuana-infused extracts or marijuana concentrates for inha-
lation.
NEW SECTION
WAC 246-80-020   Prohibition.   No person including, but not limi-
ted to, a person licensed under chapter 69.50 or 70.345 RCW, may sell, 
offer for sale, or possess with the intent to sell or offer for sale 
flavored vapor products or any product that he or she knows or reason-
ably should know will be used with or in a vapor product to create a 
flavored vapor product. The foregoing prohibition applies to the sale, 
offer for sale, or possession with intent to sell or offer for sale 
flavored vapor products at any location or by any means in this state 
including, but not limited to, by means of a telephonic or other meth-
od of voice transmission, the mail or any other delivery service, or 
the internet or other online service.
NEW SECTION
WAC 246-80-025   Warning signs.   A person who holds a vapor prod-
uct retailer's license or a vapor product delivery sale license issued 
under chapter 70.345 RCW must display a sign warning of the risk of 
lung disease associated with the use of vapor products, which the de-
partment shall design and make available on its website, so that it is 
clearly visible to anyone purchasing vapor products from the license 
holder.
[ 3 ] OTS-1757.2NEW SECTION
WAC 246-80-030   Reporting.   (1) Principal health care providers 
and health care facilities shall submit individual case reports of ca-
ses of lung injury associated with the use of vapor products to the 
local health jurisdiction within three business days. For the purposes 
of this subsection, local health jurisdiction means where the patient 
resides, or, in the event the patient's residence cannot be deter-
mined, the local health jurisdiction in which the patient received 
treatment.
(2) Health care providers and health care facilities shall pro-
vide the following information in each case report:
(a) Patient first and last name;
(b) Patient physical address including zip code;
(c) Patient date of birth;
(d) Patient sex;
(e) Patient best contact telephone number;
(f) Name of the principal health care provider;
(g) Telephone number of the principal health care provider;
(h) Address where patient received care;
(i) Name and telephone number of the person providing the report;
(j) Case diagnosis;
(k) Pertinent laboratory data, if available;
(l) Pertinent lung imaging, if available; and
(m) Patient history of vapor product use, including whether the 
vapor product used included nicotine, marijuana, or both.
(3) Health care facilities may assume the notification require-
ments established in this chapter for health care providers practicing 
within the health care facility.
(4) Health care providers and health care facilities shall comply 
with the requirements for the handling of case reports and medical in-
formation described in WAC 246-101-120.
(5) Local health jurisdictions shall notify the department within 
three business days using a secure electronic disease surveillance 
system for each case report received by the local health jurisdiction.
(6) Local health jurisdictions shall submit a case report to the 
department using a secure electronic disease surveillance system for 
each case report received by the local health jurisdiction:
(a) Within seven days of completing a case investigation; or
(b) Within twenty-one days of receiving the case report if the 
investigation is not complete.
NEW SECTION
WAC 246-80-040   Enforcement.   (1) Violations of these rules may 
be subject to enforcement by any agency under authority of RCW 
43.20.050 (5). Enforcement actions may include, but are not limited to, 
requiring a person to stop selling flavored vapor products prohibited 
under WAC 246-80-020 through the use of one or more of the following:
(a) A conference with the person to explore facts and resolve 
problems;
(b) A compliance agreement with the person;
(c) A notice of correction;
[ 4 ] OTS-1757.2(d) A notice of violation;
(e) An order;
(f) Other authorized proceedings.
(2) Enforcement orders issued under this section shall be in 
writing and shall include the violation and the corrective action re-
quired, and the name, business address, and phone number of an appro-
priate staff person who may be contacted regarding the order.
(3) Enforcement orders shall be personally served in the manner 
of service of a summons in a civil action or in a manner showing proof 
of receipt.
[ 5 ] OTS-1757.2