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September 20, 2019

Key Questions for Vaping Businesses

Summary:

Given the exclusions in CGL and product liability policies, vaping businesses cannot simply assume that they have the necessary coverage.

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As vaping becomes increasingly popular across the U.S., more businesses are manufacturing, distributing and selling vaping products, including ones containing or intended for use with CBD or THC. The proliferation of vaping products is likely to lead, before long, to an increase in vaping-related litigation.

As such, vaping-related businesses will want to make sure – before litigation ever occurs – that they have the right insurance in place to respond. Given the variety of terms, conditions and particularly exclusions in commercial general liability (CGL) and product liability insurance policies, businesses cannot simply assume that they have the necessary coverage.

In determining whether it has the needed coverage, a vaping-related business will want to take into account a number of considerations, including:

  • Does its CGL insurance cover product-related claims, or it is necessary to obtain and maintain separate product liability insurance? Some CGL policies may specifically exclude coverage for “Products-Completed Operations.” As a result, such policies may not provide coverage if a consumer is injured by, for example, an exploding vape pen.
  • Is its CGL or product liability insurance written on a claims-made basis, or does it provide occurrence-based coverage? Basically, a claims-made insurance policy provides coverage for a claim made during the policy period, whereas an occurrence-based policy provides coverage for an accident that happens during the policy period (no matter when the claim is ultimately made). Therefore, occurrence-based coverage is generally more valuable to the policyholder, especially when facing risk of long-tail-exposure claims (such as many toxic-tort claims). However, at least for cannabis-related companies, it may be difficult, if not impossible, to purchase an insurance policy covering product claims that is written on an occurrence basis.
  • Does its CGL policy or its product liability policy specifically exclude coverage for vaping-related products or vaping-related injuries? There are different formulations of such exclusions being used by insurers today. For example, at least one insurer includes a complete exclusion for vaping equipment and components, which precludes coverage for “any claim arising out of the use, handling or ownership of vaporizing equipment or any part of the accessories attached or used with the vaporizing equipment including pens, cartridges, mouth pieces, batteries, chargers, coils and any miscellaneous products used with, or attached to, vaporizing equipment.” Another insurer only excludes coverage for claims “resulting from the use, sale or distribution of batteries manufactured by, or which are represented, marketed and/or sold as having been manufactured by” certain specified companies.
  • Do its CGL or product liability policies include other exclusions that may arguably defeat coverage for a vaping-related claim? Such exclusions may include, (i) a health hazard exclusion, (2) a marijuana/cannabis products exclusion and (iii) a carcinogen exclusion.

The insurance considerations only increase if the vaping products at issue include, or are intended for use with, THC (i.e., the chief psychoactive component in marijuana, which remains a Schedule I controlled substance in the U.S.) or even CBD. Because marijuana remains illegal in the U.S., there are still many insurance companies that will not write coverage for a cannabis-related business or agree to cover cannabis-related losses. There are also any number of insurance policy terms, conditions, or exclusions that arguably could defeat coverage for a THC/cannabis-vaping-related claim. As such, as companies that already have CGL or product liability insurance move into the THC vaping space, they should double-check with their insurer(s) and review their policy(ies) to make sure they still would have coverage for any claims arising out of THC vaping. They cannot just expect that the policies they historically have had will cover them in this new line of business.

See also: Legal Marijuana: An Insurance Perspective  

Finally, CBD-related vaping products may raise many of the same concerns. Although the 2018 federal farm bill opened the door for the legal production and sale of hemp and hemp-derived CBD in the U.S., it did not amend the federal Food, Drug, and Cosmetic Act or otherwise legalize the sale of CBD for oral consumption. Accordingly, insurance policy provisions that require compliance with all applicable laws or exclude coverage for illegal acts or substances may arguably still bar coverage for CBD-vaping-related claims.

While many of these considerations will apply to many businesses in the vaping industry, each business is also likely to have its own unique insurance needs and issues, and each business should carefully review its specific coverages carefully.

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About the Author

Michael Sampson is a partner at Reed Smith who is a member of the Insurance Recovery Group and is also the co-vice chair of its cannabis law team. He focuses his practice on assisting policyholders address and resolve complicated insurance coverage matters.

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