Class Action Lawsuit Claims THC Vape Pens Contained Illegal Levels of Delta-9

According to allegations raised in a recently filed class action lawsuit, Lifted Liquids vape pens may contain levels of delta-9 THC that exceed the federally allowable limits, making their possession illegal in many states where they are being sold.

Delta-9 tetrahydrocannabinol (THC) is a chemical compound that can be derived from marijuana. Unlike similar substances like delta-8 or delta-10 THC, which are both derived from hemp, delta-9 is known as the compound that gives marijuana its mood-altering properties. As a result, delta-9 is still a federally controlled Schedule I substance, which is illegal to possess at certain levels in many U.S. states.

In a complaint (PDF) filed in the U.S. District Court for the Northern District of Illinois, Josue Hernandez and Sergio Hernandez allege that Lifted Liquids vape pens contain levels of delta-9 THC greater than the federally allowable limit of 0.3%, making them capable of causing unwitting users to suffer from anxiety, panic attacks, impaired coordination and driving while unknowingly intoxicated.

The Plaintiffs also point out that in the states where they reside, Florida and Texas respectively, the vape pens are illegal to possess, which may expose consumers to a risk of arrest or jail time. In addition, consuming the THC vape pens could cause users to fail drug tests, which might affect their livelihoods.

The THC vape pen lawsuit names Lifted Liquids Inc. as the defendant, seeking class action status to pursue damages on behalf of the two named Plaintiffs, as well as other  similarly situated consumers nationwide, with subclasses proposed for residents of certain states.

Josue Hernandez claims he used Urb brand delta-8 products made by Lifted Liquids to help him relax from 2023 through 2024, and he specifically chose these vape pens because they are marketed as containing less than 0.3% delta-9 THC.

Sergio Hernandez says he too believed the company’s marketing that Urb brand delta-8 pens contained allowable limits of delta-9 THC, and was therefore willing to use the vape pens in 2022, to help relieve stress.

However, each of the Plaintiffs contend that the Urb THC vape pens were improperly labeled as containing delta-8, when in fact they contained 1.35% to 3.99% delta-9 THC, which is somewhere between 450% and 1,333% higher than allowable limits of the substance in the states where they each reside.

“Consumers purchase Defendant’s products believing they are perfectly legal and safe to use, and instead receive products criminally outlawed in many states throughout the country (and federally) and could result in them get fired for a failed drug test or serving prison time for driving under the influence, possession, or use,” the THC vape pen class action lawsuit states. “Defendant’s conduct is worse than, e.g., selling purportedly non-alcoholic beer that is in fact alcoholic. Mere possession of the products actually sold is a crime.”

The Plaintiffs present claims for breach of implied warranty, breach of express warranty, unjust enrichment and fraud, seeking injunctive relief and restitution, as well as actual, compensatory, statutory and punitive damages.

THC Vape Pens Side Effects and Health Problems

The class action lawsuit comes as THC vape pens have become increasingly popular in the U.S. However, there have also been concerns about potentially serious  adverse health effects associated with the electronic cigarettes.

In October 2019, the U.S. Food and Drug Administration (FDA) released a statement urging individuals to stop vaping with THC products, due to reports of lung problems  associated with certain versions.

The FDA released its statement after researchers with the U.S. Centers for Disease Control and Prevention (CDC) found that vaping may be responsible for more than 1,000 illnesses and at least 18 known deaths at the time.

Eventually, studies found that the presence of vitamin E acetate in vaping products could be responsible for development of the respiratory illnesses, which became known as e-cigarette or vaping associated lung injury (EVALI).

Although vitamin E acetate has not been banned from vape products at the federal level, many states have made the sale of vape juices containing the product illegal.