The Washington State Liquor and Cannabis Board (WSLCB) is hosting two Listen and Learn forums to consider establishing new and amending existing sections of rule concerning marijuana definitions and marijuana vapor products. This is the first of two planned sessions. The full text of the draft conceptual rules are provided here. For this session, we are discussing only draft conceptual rule sections 314-55-010(4) and (40) to implement House Bill 2826 pertaining to marijuana vapor products.
WSLCB Announcement (August 18, 2020)
WSLCB - Listen and Learn Forum - HB 2826 Implementation
(September 1, 2020)
Observations
The WSLCB announced an upcoming listen and learn forum on September 1st for the implementation of HB 2826 regarding "characterizing flavors" of concern for public health and "youth access" as well as the creation of a framework for prohibition of additives in the wake of the vapor associated lung injury health scare.
- The announcement included draft conceptual rules for discussion.
While over 100 participants signed in---including many public health and prevention representatives---few had comments to offer on new definitions for “characterizing flavor” and “terpenes”.
- However, most of the comments offered were substantial.
Drawing over 100 attendees, nine participants commented on new definitions for ‘characterizing flavor’ and ‘terpenes’ instrumental to new WSLCB public safety and prevention authorities.
Here are some observations from the Tuesday September 1st Washington State Liquor and Cannabis Board (WSLCB) Listen and Learn Forum on the Implementation of HB 2826.
My top 3 takeaways:
- Policy and Rules Manager Kathy Hoffman welcomed attendees, reviewed the meeting format, and described the background of the bill and rulemaking process.
- HB 2826 was agency request legislation from WSLCB passed earlier this year which Governor Jay Inslee said would improve the safety of cannabis vapor products by banning “all non-natural flavored marijuana vapor products and requir[ing] processors to disclose what ingredients are in the products.” The legislation was part of the State’s response to the vapor associated lung injuries (VALI) health scare which occurred the previous fall.
- See Cannabis Observer’s coverage of the bill’s House policy committee public hearing and executive session, as well as the fiscal committee public hearing and executive session. We also covered the legislation’s Senate policy committee public hearing and executive session, as well as the fiscal committee public hearing and executive session.
- The supplemental biennium budget allotted $65,000 to WSLCB from the Dedicated Marijuana Account (DMA) for fiscal year (FY) 2021 to implement the new law, the exact amount in the bill’s preliminary fiscal note.
- Governor request legislation to more tightly regulate non-THC vapor products failed to pass. SB 6254 would have required non-THC vapor product “manufacturers and distributors to submit a list of product ingredients” to the Washington State Department of Health (DOH).
- In late June, the WSLCB signaled preparations to open a new rulemaking project to implement the legislation, filing a CR-101 on July 8th. Agency representatives consulted with the DOH and released conceptual draft rules on August 18th.
- Introducing the Policy and Rules team, Hoffman welcomed attendees and reviewed the project’s background. She said the new law called for “serious attention by the state in the interest of protecting public health and preventing youth access” to cannabis vapor products. WSLCB was given “specific authority to prohibit the use of any additive, solvent, ingredient, or compound in marijuana vapor product production and processing and to prohibit any device used in conjunction with a marijuana vapor product” (audio - 12m).
- Hoffman went over the listen and learn format which included expectations and methods to participate during or after a session. She reminded everyone that the session would focus on the conceptual draft rule’s “definitions under WAC 314-55-010(4) and (40)” for ‘characterizing flavor’ and ‘terpenes’ definitions, respectively. Hoffman said the agency aimed to gather feedback “in a structured fashion.”
- Hoffman asked to hear “what you like, what you don’t like, and then what we’re really looking for is alternative language for each rule section.” WSLCB staff would document, organize, and analyze participant comments. The results would be provided to the Board for discussion “and then the workbook will be published at a later date on the LCB website.”
- A second listen and learn session was set for September 29th covering “draft conceptual rules for new proposed section [WAC] 314-55-5501” and “discussion of a marijuana ingredients disclosure form.”
- See the current marijuana vapor products disclosure form, required by WSLCB’s May 27th emergency rule on Ingredient Disclosure (CR-103E, Memorandum, Rule Text).
- Following participant introductions in the webinar chat box, Hoffman provided “a brief overview of the rulemaking process” and emphasized the rulemaking project was at the “pre-proposal statement of inquiry” stage including conceptual draft rules and engagement with stakeholders (audio - 7m).
- The WebEx session drew over 100 attendees of which Cannabis Observer identified 81 individuals. An additional 14 provided incomplete names, while other callers attended anonymously.
- WSLCB Policy and Rules team:
- Kathy Hoffman, Policy and Rules Manager
- Casey Schaufler, Policy and Rules Coordinator
- Audrey Vasek, Policy and Rules Coordinator
- Other WSLCB staff in attendance:
- Jason Barsness, Enforcement Marijuana Unit Sergeant, NW Region
- Josh Bolender, Enforcement Marijuana Unit Lieutenant
- Joe Bussman, Enforcement Marijuana Unit Officer
- Brent DeBeaumont, Licensing Senior Policy and Education Manager
- Judy Edwards, Executive Assistant for the Chief of Enforcement
- Henry Gill, Enforcement Marijuana Unit Lieutenant, Pierce and King Counties
- Kendra Hodgson, Cannabis Examiner Manager
- Nicholas Poolman, Chemist
- Nicola Reid, Licensing Compliance and Adjudications Manager
- Robbie Satterly, Enforcement Officer, Marijuana Unit
- Chris Thompson, Director of Legislative Relations
- Bruce Turcott, Washington State Office of the Attorney General (OAG) Assistant Attorney General assigned to WSLCB
- Belinda Verona, Enforcement Marijuana Unit Administrative Assistant
- Remote participants and observers from public health organizations and prevention groups (30):
- Hailey Croci, American Lung Association Tobacco Control Coordinator/TOGETHER! for Youth, Chelan-Douglas Counties
- Matthew Cox, Educational Service District 112 (ESD 112), Prevention Specialist
- Jacob Delbridge, DOH Marijuana Prevention and Education Program (MPEP) Policy, Systems & Environmental Changes Coordinator
- Derek Franklin, Washington Association for Substance Abuse & Violence Prevention (WASAVP) President
- Kirsten Fuchs, Community Prevention and Wellness Initiative (CPWI) Coalition Coordinator
- Ileana Garakani, El Centro de la Raza - Seattle MPEP Lead Coordinator
- Lois Gillmore, Substance Abuse and Mental Health Services Administration (SAMHSA), Assistant Regional Administrator, Region 10, Seattle WA
- Linda Graves, Tacoma-Pierce County Health Department, MPEP Regional Coordinator
- Tina Johnson, ESD 112/West Van for Youth Coalition Coordinators
- Elaine Kitamura, American Heart Association (AHA)’s Community Impact Director
- Ramona Leber, Cowlitz Substance Abuse Coalition Principle Officer
- Christi Maroney, TOGETHER! for Youth Executive Director
- Marsha Masters, Washington Traffic Safety Commission (WTSC), Target Zero Manager, Kitsap County
- Megan Moore, Kitsap Public Health District, Community Liaison
- Rachel Neer, West Van for Youth Coalition Coordinators
- Stacey Okland, Okanogan County Community Coalition Executive Director
- Elena Ozturk, El Centro de la Raza - Seattle Administrative Assistant, Human Services Smoking Cessation Specialist
- Leanne Reid, ESD 112/Prevent Coalition
- Joyce Roper, OAG Assistant Attorney General representing DOH Medical Marijuana Program
- Eveline Roy, WTSC Target Zero Manager, Chelan, Douglas, Okanogan and Kittitas Counties
- Mary Segawa, former WSLCB Public Health Education Liaison
- Jennifer Simmons, Thurston County Public Health & Social Services (PHSS), Education and Prevention
- Tony Smith, Tacoma-Pierce County Health Department, Health Promotion Coordinator I
- Christine Steele, Washington State Health Care Authority (HCA) Division of Behavioral Health and Recovery (DBHR)
- Cori Tarzwell, DOH Health Systems Quality Assurance Division Policy Analyst
- Nicole Thomsen, Snohomish Health District Health Policy Analyst
- Britney Van Winkle, Lincoln County Health Department Prevention Specialist
- Sarah Ross-Viles, Public Health - Seattle & King County, Youth Health and Marijuana Program Manager
- Erika Wassom, Prosser Thrive Coalition Project Coordinator
- Liz Wilhelm, WASAVP Board Member; Prevention Works in Seattle (Prevention WINS) Drug Free Communities Coalition Coordinator
- Other named remote participants and observers (35):
- Patsy Anderson
- Laurie Andrade, Orchid Essentials Director of Compliance
- Brian Bodge, Bud’s Garage Owner
- Chris Bradley, Nobel Farms CEO
- Carola Brenes, Washington Service Corps Program Coordinator
- Becca Burghardi, Northwest Cannabis Solutions (NWCS) Assistant Director, Research and Development
- Courtney Cable
- Samantha Craig, Craft Cannabis Coalition (CCC)
- Shawn DeNae Wagenseller, Washington Bud Company Co-Owner
- Megan Denny
- Brad Douglass, The Werc Shop Vice President of Regulatory Affairs
- Charissa Eichman, Attorney
- Kelsea Evans
- Gregory Foster, Cannabis Observer
- David Heldreth, Panacea Life Sciences CEO; Ziese Farms CEO
- Ray Heiser
- Rob Hendrix, Cannabis Consulting Nationwide Owner
- Kelsey Holstrom, NWCS Compliance Associate
- Kim Horton
- Wendy Hull, Fairwinds CEO
- Lukas Hunter, Harmony Farms Director of Compliance and Government Affairs
- Erik Jennings, Pacifica Law Group Partner
- Chris Masse, Miller Nash Graham & Dunn Partner
- Jennifer Mohr, Green Revolution Quality Assurance Lead
- Joanna Monroe, CCC Executive Director
- Crystal Oliver, Washington SunGrowers Industry Association (WSIA) Executive Director
- Chuck Olivier, DBS
- Bryen Salas, Ionic Brands Vice President
- Silviano Sanchez, SNS Cannabis
- Dylan Thiel, Dabstract/Union Cannabis Group (UCG) CTO
- Jaramie Thomas, Satori Bellingham Manager
- Jennifer Vincent, House of Cannabis Data Integrity Manager
- Heather Wertz, Agape Research Operations Manager; Veridian Management Services Owner
- Cara Wietstock, Ganjapreneur Journalist
- Amber Wise, Medicine Creek Analytics Scientific Director
- WSLCB Policy and Rules team:
- HB 2826 was agency request legislation from WSLCB passed earlier this year which Governor Jay Inslee said would improve the safety of cannabis vapor products by banning “all non-natural flavored marijuana vapor products and requir[ing] processors to disclose what ingredients are in the products.” The legislation was part of the State’s response to the vapor associated lung injuries (VALI) health scare which occurred the previous fall.
- The forum focused on two new definitions in the draft conceptual rules created by the agency: 'characterizing flavor' and 'terpenes'.
- WAC 314-55-010(4) - Characterizing Flavor (audio - 2m). The draft language reads: “‘Characterizing flavor’ means a clearly noticeable taste, other than one of cannabis, resulting from an additive or combination of additives, including but not limited to fruit, spice, herbs, alcohol, candy, or menthol, or that is noticeable before or during consumption of the cannabis product.”
- Elena Ozturk (audio - 1m).
- Lukas Hunter (audio - 1m). Hunter argued that usage of the term “cannabis” in the definition was problematic “because cannabis hasn’t been defined in this section.” He recommended using “marijuana” instead as it was defined in RCW 69.50.101(y).
- Crystal Oliver (audio - 1m). Oliver asked that the phrase “or that is noticeable” be removed from the drafted language as doing so “improves the definition.”
- Hailey Croci (audio - 1m). Croci suggested adding the word “aroma” after “taste”.
- Chris Masse (audio - 2m). Masse “was a little confused by this definition because the definition is framed in terms of a flavor other than cannabis, but the use of the term ‘characterizing flavor’ in the bill is in terms of the flavor of cannabis.” She noted the statute “doesn’t prohibit characterizing flavors, it actually says that it’s OK in these certain cases which is when it’s mimicking cannabis. Whereas the definition in the rule kind of seems to be on the other end of the spectrum which is when it’s not mimicking cannabis.”
- Section 4 of the session law states: “marijuana processors may incorporate in marijuana vapor products a characterizing flavor if the characterizing flavor is derived from botanical terpenes naturally occurring in the cannabis plant, regardless of source, and if the characterizing flavor mimics the terpene profile found in a cannabis plant.”
- Jaramie Thomas (audio - 2m). Thomas advised adding the phrase "botanical terpenes" to the definition as he believed “that’s typically what’s being used” to impart characterizing flavors.
- WAC 314-55-010(40) - Terpenes (audio - 1m). The proposed definition states: “‘Terpenes’ means a class of compounds that imparts smell, taste, or both occurring in the cannabis plant which consist of a carbon skeleton derived from isoprene units. The word ‘terpene’ may include, but is not limited to the following:
(a) ‘Botanical terpenes’ means constituents derived from a spice, fruit, vegetable or vegetable juice, edible yeast, herb, bark, bud, root, or leaf or similar plant material. Their significant function in cannabis products is flavoring rather than to act as a drug. This includes:
(i) Essential oil, which is natural oil typically obtained by distillation and possessing the characteristic fragrance of the plant or other source from which it is extracted;
(ii) Oleoresin, which is a natural or artificial mixture of essential oils and a resin;
(iii) Distillate; or
(iv) Any product of roasting, heating, or enzymolysis which contains terpene.
(b) ‘Synthetic terpenes’ means any terpene that does not occur in the cannabis plant, or in other botanical sources, and is produced through chemical manipulation in a laboratory or similar facility.
(c) ‘Terpenoids’ means the natural products and related compounds formally derived from isoprene units, or “isoprenoids,” that have the same meaning as that found in the current version of the International Union of Pure and Applied Chemistry (IUPAC) and as hereafter amended.”- David Heldreth (audio - 3m). Heldreth was concerned about the inclusion of terpenoids in the terpenes definition “as they’re separate compounds.” He recommended replacing “constituents” with “terpenes” in the “botanical terpenes" definition, saying that HB 2826 “states only botanical terpenes, no other compounds, only botanical terpenes may be used.” Heldreth wanted ‘edible yeast’ removed as “yeast is not a botanical, botanical means plant.” He argued that subsections under (a) should be prefixed to read “Terpenes derived from essential oils” or oleoresin/distillate to comport with the law which does not permit other compounds from those sources to be used. Heldreth also noted some terpenes from non-cannabis sources may be enantiomeric as compared to terpenes from cannabis sources.
- Heldreth shared written versions of his comments in the webinar chat which Cannabis Observer was able to partially reconstruct as: “[T]he use of anything other than the exact chemical class of terpenes is now allowed and must be altered as I have done below. Terpenoids are not actually chemically terpenes. They are related, but separate groups, simply amending them to have the same meaning under Washington regulation would be at the same time a violation of Washington State law as the law does not allow additional compounds, but only terpenes, again not related compounds.
...is flavoring rather than to act as a drug. This includes:
(i) Terpenes derived from essential oil, which is natural oil typically obtained by distillation and possessing the characteristic fragrance of the plant or other source from which it is extracted;
(ii) Terpenes derived from oleoresin, which is a natural or artificial mixture of essential oils and a resin;
(iii) Terpenes derived from Distillate; or
(iv) Any product of roasting, heating, or enzymolysis which contains only terpenes.
(b) “Synthetic terpenes” means any terpene that does not occur in the cannabis plant, or in other botanical sources, and is produced through chemical manipulation in a laboratory or similar facility.
(c) “Terpenoids” means the natural products and related compounds formally derived from isoprene units, or “isoprenoids,” that have the same meaning as that found in the current version of the International Union of Pure and Applied Chemistry (IUPAC) and as hereafter amended."
- Heldreth shared written versions of his comments in the webinar chat which Cannabis Observer was able to partially reconstruct as: “[T]he use of anything other than the exact chemical class of terpenes is now allowed and must be altered as I have done below. Terpenoids are not actually chemically terpenes. They are related, but separate groups, simply amending them to have the same meaning under Washington regulation would be at the same time a violation of Washington State law as the law does not allow additional compounds, but only terpenes, again not related compounds.
- Brad Douglass (audio - 1m). Douglass approved of some of the language as it “seems to mirror the definition of ‘natural flavors’ as defined in the Code of Federal Regulations (CFR)” Title 21, Chapter I, Subchapter B, Part 101.22. His suggestion was to “incorporate it by reference” in the rule definitions “instead of just taking bits and pieces” which would be the same as “defining it anew.”
- Crystal Oliver (audio - 2m). Oliver wondered whether “vegetable juice” was redundant since “we have vegetable there.” She advised that staff strike "rather than act as a drug" from (a), and reorder the listed constituents “reflective of the more common places we’re going to be deriving those terpenes from.” Furthermore, Oliver said both "oleoresin" and "distillate" could merit their own definitions as they weren’t “botanical terpenes” on their own.
- Chris Masse (audio - 1m). Masse reported being unable to locate "terpenoid" or "isoprenoid" in the law or WAC and advised removing them from the draft definition.
- Lukas Hunter (audio - 3m). Hunter was in agreement with Oliver’s call to remove "rather than act as a drug" as “cannabis-derived terpenes do have an effect on the endocannabinoid system.” He added that there could be an “entourage effect with the endocannabinoid system” when botanical terpenes were included. Additionally, he called to remove "chemical manipulation" from (b) and asked for a general definition of “what a cannabis vapor product is” as it wasn’t fully outlined in the definition. Hunter promised to submit written changes to staff at a later date.
- Shawn DeNae Wagenseller (audio - 3m).
- Crystal Oliver - continued (audio - 1m). Oliver said agency staff should consider a separate definition for “additives” and restructure the terms within that as needed.
- David Heldreth (audio - 3m). Heldreth was concerned about the inclusion of terpenoids in the terpenes definition “as they’re separate compounds.” He recommended replacing “constituents” with “terpenes” in the “botanical terpenes" definition, saying that HB 2826 “states only botanical terpenes, no other compounds, only botanical terpenes may be used.” Heldreth wanted ‘edible yeast’ removed as “yeast is not a botanical, botanical means plant.” He argued that subsections under (a) should be prefixed to read “Terpenes derived from essential oils” or oleoresin/distillate to comport with the law which does not permit other compounds from those sources to be used. Heldreth also noted some terpenes from non-cannabis sources may be enantiomeric as compared to terpenes from cannabis sources.
- WAC 314-55-010(4) - Characterizing Flavor (audio - 2m). The draft language reads: “‘Characterizing flavor’ means a clearly noticeable taste, other than one of cannabis, resulting from an additive or combination of additives, including but not limited to fruit, spice, herbs, alcohol, candy, or menthol, or that is noticeable before or during consumption of the cannabis product.”
- As the session wrapped and staff looked at next steps a final comment was shared calling for a new definition for ‘youth access’.
- As Hoffman brought the meeting to an early close, Schaufler reported a final request for comment.
- Sarah Ross-Viles asked for a new definition to clarify “what youth access means in this context.” Hoffman welcomed her remarks while noting that a new section mentioning youth access would be part of the second listen and learn session on September 29th. Ross-Viles didn’t have a definition drafted but was amenable to sending one to Hoffman’s team. “I just think it might be critical in the implementation of this rule if the decisions the Board makes are based on considerations of youth access to have a definition of what that means,” she stated (audio - 4m).
- In the chat box, Oliver shared the definition of ‘youth access’ already in HB 2826: “the level of interest persons under the age of twenty-one may have in a vapor product, as well as the degree to which the product is available or appealing to such persons, and the likelihood of initiation, use, or addiction by adolescents and young adults.”
- Hoffman thanked participants and explained the next stages of the rulemaking project now that staff had “some additional comments to think about.” Her team would review what they’d heard in the session and any subsequent comments received into a “general comment matrix” for agency use (“We’ll also share that spreadsheet out with you at a date in the future,” she added). Hoffman believed it was “aspirational” that WSLCB could show stakeholders definition revisions at the next listen and learn session. Schaufler said that “additional communications” about that session would go out no later than September 15th (audio - 5m).
Information Set
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Announcement [ Info ]
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WSLCB - Rulemaking Project - HB 2826 Implementation - CR-101
[ InfoSet ]
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CR-101 - Signed - Not Filed (Jul 2, 2020) [ Info ]
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CR-101 - Signed - Filed (Jul 8, 2020) [ Info ]
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Memorandum (Jul 2, 2020) [ Info ]
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Board Approval - Not Signed (Jul 2, 2020) [ Info ]
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Notice of Rulemaking (Jul 9, 2020) [ Info ]
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Notice to Stakeholders (Jul 8, 2020) [ Info ]
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Draft Conceptual Rules - v1.0 (Aug 18, 2020) [ Info ]
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Disclosure Form - Draft (Sep 15, 2020) [ Info ]
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Chat Log - Cannabis Observer (Sep 1, 2020) [ Info ]
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Complete Audio - Cannabis Observer
[ InfoSet ]
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Audio - 00 - Complete (51m 13s; Sep 1, 2020) [ Info ]
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Audio - 01 - Welcome - Kathy Hoffman (11m 41s; Sep 1, 2020) [ Info ]
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Audio - 02 - Brief Overview of Rulemaking Process - Kathy Hoffman (6m 50s; Sep 1, 2020) [ Info ]
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Audio - 03 - Comments - WAC 314-55-010(4) - Characterizing Flavor (1m 33s; Sep 1, 2020) [ Info ]
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Audio - 04 - Comment - WAC 314-55-010(4) - Elena Ozturk (30s; Sep 1, 2020) [ Info ]
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Audio - 05 - Comment - WAC 314-55-010(4) - Lukas Hunter (39s; Sep 1, 2020) [ Info ]
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Audio - 06 - Comment - WAC 314-55-010(4) - Crystal Oliver (1m 2s; Sep 1, 2020) [ Info ]
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Audio - 07 - Comment - WAC 314-55-010(4) - Hailey Croci (48s; Sep 1, 2020) [ Info ]
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Audio - 08 - Comment - WAC 314-55-010(4) - Chris Masse (1m 39s; Sep 1, 2020) [ Info ]
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Audio - 09 - Comment - WAC 314-55-010(4) - Jaramie Thomas (2m 24s; Sep 1, 2020) [ Info ]
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Audio - 10 - Comments - WAC 314-55-010(40) - Terpenes (1m 4s; Sep 1, 2020) [ Info ]
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Audio - 11 - Comment - WAC 314-55-010(40) - David Heldreth (2m 51s; Sep 1, 2020) [ Info ]
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Audio - 12 - Comment - WAC 314-55-010(40) - Brad Douglass (1m 8s; Sep 1, 2020) [ Info ]
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Audio - 13 - Comment - WAC 314-55-010(40) - Crystal Oliver (2m 8s; Sep 1, 2020) [ Info ]
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Audio - 14 - Comment - WAC 314-55-010(40) - Chris Masse (38s; Sep 1, 2020) [ Info ]
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Audio - 15 - Comment - WAC 314-55-010(40) - Lukas Hunter (2m 37s; Sep 1, 2020) [ Info ]
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Audio - 16 - Comment - WAC 314-55-010(40) - Shawn DeNae Wagenseller (2m 35s; Sep 1, 2020) [ Info ]
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Audio - 17 - Comment - WAC 314-55-010(40) - Crystal Oliver - continued (1m 18s; Sep 1, 2020) [ Info ]
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Audio - 18 - Wrapping Up - Kathy Hoffman (21s; Sep 1, 2020) [ Info ]
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Audio - 19 - Comment - WAC 314-55-010(40) - Sarah Ross-Viles (4m 10s; Sep 1, 2020) [ Info ]
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Audio - 20 - Wrapping Up - Kathy Hoffman - continued (5m 19s; Sep 1, 2020) [ Info ]
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WSLCB - Listen and Learn Forum - General Information
[ InfoSet ]
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Guidance - v1 (Sep 11, 2019) [ Info ]
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Guidance - v2 (Jul 19, 2021) [ Info ]
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