WA Senate LCTA - Committee Meeting
(May 10, 2022)

Here are some observations from the Tuesday May 10th Washington State Senate Labor, Commerce, and Tribal Affairs Committee (WA Senate LCTA) Committee Meeting.

My top 3 takeaways:

• Oregon Liquor and Cannabis Commission (OLCC) Executive Director Steven Marks elaborated on the commission’s policies around cannabinoid regulation and their approach to synthesized compounds in legal cannabis products (audio - 8m, video, presentation).
  • Marks explained he’d be offering “context” while Hemp and Processing Specialist Steven Crowley would tell more about “how we’re regulating cannabinoids in Oregon.” He kicked off his remarks by observing "we've come a long way from smoking cannabis to...Breaking Bad chemistry” and regulators were still looking at “how to distinguish” the compounds in the “legal, regulatory market” in their jurisdictions.
    • At publication time, Marks was a Member at Large in the leadership of the Cannabis Regulators Association (CANNRA) and spoke on a panel at the Rede Group - Public Health + Youth Prevention Marijuana Summit - 2021 about “Delta-8 THC and Other THC Isomers.”
    • At a Washington CannaBusiness Association (WACA) Fall Policy Conference in November 2021, Washington State Liquor and Cannabis Board (WSLCB) Director Rick Garza said Orgeon had “no caps for how much canopy” was allowed for cannabis, and that Marks gave him the impression there’d been “trouble beyond belief.” Garza, the First Vice President of CANNRA, understood the state's hemp law had enabled “out of control” growing in the southern part of Oregon that was “really disruptive.”
  • According to Marks, in 2021 Orgegon had become “ground zero for cartel groups” which flocked to the state “in droves with literally thousands of illegal grows” appearing in the southern part of the state. He alleged that some had abused the Oregon Department of Agriculture hemp program to cover their activities. That July, the Oregon State Legislature adopted HB 3000 which enabled further regulation of cannabinoids, Marks explained, offering that the law had made it easier for enforcement to “look at illegal cannabis grows, not marijuana grows, but those things that were from outside of the state program.” 
    • In October 2021, some officials called for use of the national guard in cannabis interdiction for grows in Jackson and Josephine Counties after the Jackson County Board of Commissioners declared a state of emergency over unauthorized cannabis production. By December, Oregon lawmakers approved $25 million for area law enforcement to target unlicensed grows during a special session.
  • Around the time officials were confronting this development, Marks commented that his agency began seeing hemp edibles and drinks "whose content on [tetrahydrocannabinol] THC was rising by volume" but remained available in an “open marketplace” of businesses not licensed to sell cannabis. His staff found "little guidance on these products" but recognized they contained delta-9-THC as well as other THC compounds and were “readily available to children." Marks recalled that OLCC experience with “semi-synthetic or synthetic cannabinoids came about the same time” after an approved hemp producer “wanted to bring this delta-8-THC product into our system that was 97% pure in five kilogram units.” His team looked at whether they exercised “regulatory authority over this” which led to their endorsement of HB 3000, which he remarked “passed with broad bipartisan support.”
  • Marks asserted that the overriding principle in developing rules and laws around synthetic cannabinoids was to "keep it out of the hands of kids," as well as “what consumers need to know in the processing." He indicated that HB 3000 and SB 1564—which passed in 2022—mandated formation of a “Task Force on Cannabis-Derived Intoxicants and Illegal Cannabis” which first convened on May 12th. The group was required to make recommendations on testing in cannabis “processing and upward” for “human consumption,” which he stated would show what cannabinoids were present and where an item could be sold. “There may be a class of products that are open market, but [for] adult purchase only,” Marks commented, while other items would be limited to adult-only cannabis retailers. Setting up product classes would involve careful delineation of authorities between OLCC and state agriculture officials, he acknowledged.
    • The task force recommendations were due to Oregon legislators by the end of 2022.
  • Complicating the work of OLCC was a "lack of federal leadership," said Marks, though he credited U.S. Food and Drug Administration (FDA) officials who “finally did something here recently” by announcing enforcement against companies producing the products without regard for “our licensees…our regulatory systems, our tax structures.” Testing and labeling were also important, he noted, pointing to officials in California who had been working on packaging and labeling (PAL) rules for hemp. Marks said PAL requirements in Oregon had thus far been limited to what was being sold in their “adult-use stores, not on the open market.”
    • Find out more from resources on FDA Regulation of Cannabis and Cannabis-Derived Products, Including Cannabidiol (CBD).
    • WSLCB Policy and Rules Manager Kathy Hoffman forecast PAL as a topic for future rulemaking by agency staff on April 26th. 
  • As for concerns over “incomplete science,” Marks was aware of stakeholders in the hemp and cannabis sectors who expected authorities to “prove it's unsafe, and we went to the industry to [have them] prove it’s safe.” He thought that the focus should be on finding scientifically defensible standards for “these things going forward, at what dosage levels, what are the standards that we can intellectually craft between all the experts…to say ‘yeah, this product’s OK to go forward, and this product can go forward but we want a heck of a lot of disclosure to consumers.’”
  • Marks believed it was best for regulators like OLCC to have “the ability to look at all cannabinoids, and the synthetics, and what goes into products.” Since the cannabis sector was “ever evolving,” he hoped to protect consumers by having broad authority to “look at it,” finding this had been one benefit of legalization in a state that had been “very wild west capitalistic" with more legal retail access than Washington. Marks believed that regulators had significantly "shutdown interstate [commerce] in our state" based on indicators like a “drop from all the medical grows" along with a decline in patient participation in their medical program even though medical cannabis production was regulated and items could be sold in Oregon retail stores. He surmised that “if we’re gonna make safer choices for the consumer and the public,” there needed to be product “screening” to address ingredients that were “just bad form or unknown” to boost consumer confidence in their system.

• Hemp and Processing Specialist Steven Crowley went into more detail about HB 3000 and the approach used by OLCC staff in developing cannabinoid rules that would take effect later in the year.
  • Crowley stated the law addressed “a number of concerns in the hemp and cannabis industries" and accomplished “three key things” (audio - 2m, video):
    • “Prohibited the sale of ‘adult use cannabis items’ (including some hemp items) to minors
      • Directed OLCC to establish thresholds for THC and other cannabinoids for ‘adult use cannabis items’
    • Gave OLCC authority to regulate the processing and sale of synthetic cannabis derivatives in Oregon’s adult use system
    • Directed OLCC to set limits on THC and synthetic cannabis derivatives in hemp items for sale to adults” outside of the regulated system of stores
    • Crowley told the committee that commission staff used “standard notice-and-comment rulemaking” to draft rules in addition to publishing a whitepaper on regulating cannabinoids, noting that OLCC adopted the rules in December 2021. Prior rules limited THC content in foodstuffs to 0.3%, which Crowley noted wasn’t a lot in plants “but, when you’re looking at the weight of food products, .3% is a lot of THC.” Products were also regulated based on the age of the buyer, he mentioned, “for minors we set the limit at half a milligram of THC, in line with international standards” while adults could buy products with “significantly higher limits” that were still below the amounts in adult use cannabis items.
      • Learn more about the rule implementation and their impacts from a letter by OLCC leaders and a summary from the Green Light Law Group. The rules were approved over the written objections of Oregon Industrial Hemp Farmers Association (OIHFA) leaders.
  • Crowley outlined how OLCC regulatory authorities were “really shored up” by HB 3000, which provided the commission broad authority over "artificially derived cannabinoids" whether they came from cannabis or hemp crops, as well as control over their legal use in the adult-use cannabis and open hemp markets (audio - 5m, video). 
    • What Oregon regulators referred to as "synthetic derivatives" were cannabinoids “specifically created synthetically from hemp or marijuana,” he said. These compounds carried a “wide variety of potential health and safety concerns” Crowley reported, as they had "little to no history of human use" and lacked an established “safety profile for their use.”
    • According to Crowley, regulators were also concerned about “the byproducts from the synthesis,” chemical reactions which hadn’t been considered when cannabis product testing was designed and therefore were likely to be missed. He commented that some delta-8-THC products had been shown to be “somewhere between 70 to 90% pure” and when encountering a 55% pure product, “I asked the manufacturer what the other 45% was, they had no idea.”
    • Crowley was confident existing testing protocols weren’t informative for regulators or consumers “when it comes to these kinds of synthetic derivatives.” He stressed that Oregon officials “don’t test for chemical reagents or reaction byproducts” so consumers were left uninformed about products with synthetic cannabinoids and might be taking on “this whole set of unknown health and safety issues without even being aware of it.”
    • Since products were only available in age-restricted stores with warnings, Crowley looked at impairment from items as a “secondary concern compared with the general health and safety considerations.” The result was what he termed “a bifurcated approach” where both the open market and the adult-use cannabis system had regulations for synthetic cannabinoids. OLCC leaders could set concentration limits on THC in general markets, he noted, but couldn’t “require synthetic derivatives to meet any other standards for their health and safety, for that reason our rules currently prohibit products in the general market” from containing the derivatives. Synthetic cannabinoids could be used in legal cannabis products, said Crowley, as there were more “meaningful guardrails” for OLCC oversight there. Non-intoxicating synthetic derivatives could be allowed in the adult-use market with disclosure, he added. The commission’s synthetic review process could be revisited “as more data becomes available,” said Crowley
    • Crowley explained that besides disclosure of synthetic derivatives in cannabis items, compounds had to follow the “ordinary regulatory processes for introducing a novel ingredient into foods or dietary supplements.” He said this could be achieved through:
      • “A new dietary ingredient notification with the FDA”
      • “Determination that the substance is generally recognized as safe, or GRAS”
      • Intoxicating substances were assessed individually, he stated, “in order to set concentration limits similar to the ones that are in place for THC.”
    • Noting that their efforts weren’t limited to THC, Crowley mentioned that many synthetic derivatives were already “on the market” and that new compounds came to their attention “every few months, at this point.”

• The committee chair and vice-chair had a variety of inquiries on hemp limitations, cannabis sector regulations, pushback from industry, and product availability.
  • Chair Karen Keiser was curious about limits on products available to people under 21, and wondered if OLCC guidance was “saying ‘sell it to minors.’" Crowley emphasized that a product available to minors was limited to “half a milligram of THC in the entire product” based on international standards in food “around, like residual THC in hemp seed oil” (audio - 1m, video).
    • The standard identified in the whitepaper was by Food Standards Australia New Zealand (FSANZ), which published a report on Low THC Hemp Seeds as Food in March 2017 and maintained several online resources on the topic.
  • Keiser asked whether there’d been support from “your regulated cannabis companies and producers and processors” in passing HB 3000. Marks responded “yes, generally," feeling that pushback had come from “the hemp folks” and Oregon Farm Bureau members, "but in the end we had enough support to get it done" (audio - 1m, video)/ 
    • Keiser’s experience when WA Senate LCTA considered cannabinoid regulation legislation during the 2022 legislative session, and when she sponsored a subsequent bill, was very different and exposed sharper divisions between regulators and some trade organizations over the use of synthesized THC in legal Washington products.
    • Vice Chair Steve Conway similarly asked about “pushback from the growers” on their rules. Crowley described CBN as “a popular compound that is often made synthetically from CBD” and most of the opposition to their regulations were about “making sure that there is still a place in the market for that.” Having heard less about delta-8-THC and other synthetic compounds, he acknowledged that manufacturers in the state could still create those compounds for export to states “where they’re allowed” (audio - 1m, video). 
  • Conway felt the approach of Oregon regulators had been to “recognize the reality of the product and try to regulate it.” Marks said OLCC staff were evaluating cannabinol (CBN) under the “GRAS standard” but didn’t want cannabis regulators to act as the chief arbiters of cannabinoid science, wishing federal officials take the lead, rather than states. Crowley agreed that the science should be leading regulations, but "the industry is ahead of the science" on basic safety issues around manufacturing and consumption (audio - 2m, video). 
  • Keiser wanted to better understand the availability of hemp products in the neighboring state, curious whether infused cannabinoid products were sold “in your gas stations, and vape shops.” Crowley said their rules were taking effect in July, so OLCC leaders would get a better sense of their availability “toward the end of the year” (audio - 3m, video).
    • Marks pointed out that their existing structure “depends on our labs, certificates of analysis” but greater oversight was planned as "some element of traceability" would be important, especially if Oregon was able to act upon its plan for interstate cannabis compacts. He confirmed that hemp processors in Oregon had been allowed to receive and process crops from Colorado and California. Businesses were responsible for testing THC content and disclosing to OLCC where processed material was exported to, he added. Marks observed that it would be optimal to have “a receiving regulatory responsibility" in the jurisdiction it was sent to for “a modicum of traceability.”
      • In 2019, Oregon lawmakers prepared for interstate cannabis commerce via SB 582, contingent upon a change in the federal status of cannabis or issuance of an authorizing memorandum. Alliance for Sensible Markets, an Oregon trade group, advocated for the proposal. A similar measure was introduced in the California Senate on February 18th under the sponsorship of Senator Anna M. Caballero.
      • At publication time, OLCC was contracted with traceability vendor Metrc, used in 18 states for medical or adult-use cannabis oversight. In late 2021, WSLCB switched to an in-house Cannabis Central Reporting System (CCRS) which staff last briefed about on April 13th.
  • Keiser encouraged Marks to stay in contact with WSLCB about what the commission was doing with regards to cannabinoid regulation. Marks encouraged Keiser and committee members to review the regulatory whitepaper on cannabinoids from OLCC staff, calling it “groundbreaking work” and a useful resource for regulators and lawmakers alike. Keiser thanked him, feeling it was refreshing “to see how far you’ve come” (audio - 1m, video). 

Here are some observations from the Tuesday May 10th Washington State Senate Labor, Commerce, and Tribal Affairs Committee (WA Senate LCTA) Committee Meeting.

My top 3 takeaways:

• Portland State University (PSU) Organic Chemistry Professor and Strongin Lab Director Robert Strongin provided an informed perspective on chemical synthesis using hemp-derived cannabinoids as well as the state of cannabinoid knowledge and research (audio - 15m, video).
  • Strongin conveyed that he attended at the committee’s invitation to discuss “the chemical synthesis of hemp-derived cannabinoids and their transformation to other” cannabinoids for use in consumer products “and to talk a bit broadly about safety and any other potential unknowns or concerns.”
    • At publication time, Strongin’s profile with the American Chemical Society (ACS) indicated he had focused on “the chemistry of vaping since 2013. He has been interested in determining how flavorings, including terpenes, as well as other vape constituents, react and degrade when heated and aerosolized. In 2017 he began to investigate cannabis vaping and has published the first peer-reviewed reports on the specific byproducts formed when dabbing terpenes, and, more recently, on the reactions and products that form upon vaping and dabbing concentrated cannabis oil mixtures.”
    • In November 2021, Strongin participated in a Reddit ask-me-anything (AMA) “about analyzing the vapors created in cannabis dabbing, including the possible hazard of terpenes” following the release of a research paper titled Toxicant Formation in Dabbing: The Terpene Story. Around that time he also wrote an article for Terpenes and Testing Magazine: How Terpenes Can Cause and Prevent Degradation of Molecules in Cannabis Concentrates.
    • Learn more from Strongin’s curriculum vitae with PSU.
  • Strongin utilized the term “semi-synthetic cannabinoids" to describe compounds synthesized using hemp-sourced molecules with other reagents. He distinguished synthetics like Spice and K2 as coming from “other starting scaffolds” and therefore “not really structurally related" to tetrahydrocannabinol (THC) or cannabidiol (CBD) “but may have analogous effects." By contrast, semi-synthetic cannabinoids had seen “a resurgence lately," Strongin told the committee, in part because it starts “from a molecule whose activities [are] already known," in this case CBD. Slight changes in CBD compounds meant that “new properties are attained” which may be good or “toxic,” which was “what gets studied.” He clarified this was “essentially what people do in…the pharmaceutical industry as well."
  • The 2018 Federal Farm bill led to a “kind of perceived loophole" in federal policy whereby “the creation and marketing of these semi-synthetic cannabinoids” from CBD could be done, Strongin asserted. Indicating that academic writing on CBD synthesis had been published “dating back to the 1940s," he said that synthesis was achievable in laboratories “or even in one's home, unfortunately." With texts on “treating CBD with” acids and other processes to create semi-synthetic cannabinoids available, he remarked that minor changes in process could “favor the production of one of these over another.” Strongin considered the chemistry involved to be “relatively easy,” and that processes were already being refined “and improved upon by people in this industry as we speak.” The transformation of “CBD to delta-9-THC,” which he found to be the “most prevalent and psychoactive” cannabinoid, was established chemistry and creation of other cannabinoids was increasingly common given the compounds’ “unclear legal status.”
  • Strongin was concerned there was a public perception of CBD as “harmless” and theorized that view “could carry over” to other semi-synthetics even though the U.S. Food and Drug Administration (FDA) “does recognize that CBD may induce toxicity” in the liver. A lack of knowledge about the interaction between other drugs and CBD left him concerned about potential impacts like “male reproductive toxicity in laboratory animals." Strongin then identified “concern over the claimed benefits of CBD…and these analogues” because there had yet to be “evidence from human clinical trials,” although such trials couldn’t be conducted legally in the U.S.
    • Human clinical trials involving cannabinoids had previously been undertaken in other countries like Canada, Australia, and the United Kingdom, sometimes in cooperation with U.S. institutions.
  • Another area of concern for Strongin was that semi-synthetic cannabinoids, while easily created, were “really hard to separate and analyze" as their “physical properties” were similar. He claimed it would be difficult to determine purity even by "best equipped labs" and said "there's overlap between these cannabinoids that goes unrecognized by the manufacturers.” The result was inaccurate labeling of semi-synthetics from businesses that “just don’t have the instrumentation or know-how to understand how to see that.”
  • Strongin noted that a commonly produced semi-synthetic was delta-8-THC, a compound “naturally occurring in the plant" in such low amounts that it is only commercially available due to CBD synthesis. He stated the compound had become popular in regions without legal adult-use cannabis and was "reported to possess about 70% of the psychoactive, high-inducing potency" of delta-9-THC. But like most semi-synthetics “very little” was known about the potential health benefits or risks, indicated Strongin, besides it being similarly psychoactive to delta-9-THC.
  • Another newer semi-synthetic Strongin had encountered with increasing frequency was tetrahydrocannabiphorol (THCP), which he mentioned was created from hemp crops with more cannabidiphorol (CBDP). He told the committee that THCP has “two more carbons as part of the molecule” and was suspected of being “many, many more times more potent than delta-9-THC.” Strongin said this went beyond “anecdotal reports from users” claiming they “haven't even recovered from” consuming the compound until “the next day.” He told lawmakers of studies indicated THCP caused “33 times more activity at the cannabinoid receptors in the brain.” In his opinion, “cannabis is already potent enough.”
  • Acetylation was a process that could “enhance” potency for both delta-8-THC and delta–9-THC, according to Strongin, by synthesizing them into THC acetate ester (THC-O-acetate). He pointed out this was the same chemical process through which morphine was transformed into heroin. THC-O-acetate was able to cross the blood-brain barrier with more ease, meaning the resulting "psychoactive effects are much greater."
    • The prior week, Strongin and other researchers released a paper titled Vaping Cannabinoid Acetates Leads to Ketene Formation that he asserted would show how ketene gas—”a poison gas”---was released when vaping THC-O-acetate. He commented that he was “shocked to see” acetylation of cannabinoids since ketene gas had been identified as a byproduct of heating vitamin E acetate, the vapor product ingredient widely-blamed for a series of vaping-associated lung illnesses in Washington and elsewhere beginning in 2019. Strongin considered the compound “dangerous to vape/smoke.”
  • Though not wanting “to be alarmist,” Strongin found that semi-synthetic cannabinoids "are getting more and more prevalent and we don't understand them." He hoped his overview could “touch the surface” of the topic without being overwhelming. Chair Karen Keiser expressed gratitude for Strongin’s work and insight (audio - <1m, video). 
  • Vice Chair Steve Conway had a question on regulation, believing that when cannabis was legalized, voters had been “talking about the cannabis plant, and they were talking about the use of cannabis.” Since officials regulated cannabis production and processing, he asked if more should be done to regulate those undertaking semi-synthetic chemistry. Though the federal prohibition on cannabis remained a problem as it limited research of the compounds, some substances had been legally obtained by converting CBD and Conway wanted a sense of where laws and oversight should be applied (audio - 5m, video). 
    • Strongin considered current law to have created a “loophole" that allowed the creation of semi-synthetic cannabinoids, and while “it could be that these turn out to be perfectly harmless materials. I doubt it." He considered the unregulated chemistry at the heart of the process to be "analogous to" creating variations on chemicals like methamphetamine. Strongin’s view was that these processes "absolutely” needed to be regulated, but that would be complicated since "transformations can be done in somebody's kitchen" and information on the process was widely available online. He recognized the situation as “a tough problem" but also “important” to address.
  • Senator Mark Schoesler wondered if a distinction could be made between hemp fibers and hemp oils, asking if hemp oils were being chemically modified into delta-8-THC, but not the hemp fibers. Strongin wasn’t certain, replying that “the chemical process comes from CBD.” Schoesler thought looking “at where the future goes here, we’ve been talking about legal hemp as long as I can remember” and that it “was always going to be a miracle crop for the fiber.” Now he saw “the seed and the oil” as a more valuable market, and figured if “that’s where the problem is, perhaps that’s where we should be looking” to regulate. Strongin cautioned that those engaging in "this kind of work…they're really good at moving targets, when you regulate one," participants might move to a different process if only certain parts of hemp plants were regulated (audio - 2m, video). 
  • Senator Rebecca Saldaña asked how Strongin’s work was funded, indicating that lawmakers were considering increasing funding for cannabis studies by Washington researchers. She expressed a particular interest in hearing “about dabbing” as it appeared to her to be an “epidemic with young people.” Like the difference between beer and “pure alcohol,” Saldaña spoke of the “intensity and the damage” concentrated cannabis products could cause youth. Saldaña hoped to hear about “education and prevention” strategies as well (audio - 5m, video) 
    • Noting that the Strongin Lab had released research on cannabis dabbing in 2019, Strongin explained they’d evaluated ketene formation in dabbing, concluding that there were a lot of unknowns around methods of administration, but he expected dabs had "way more exposures to toxins" and carried "way more risk."
    • His funding had taken two years to arrange, and the process was "so hard" to obtain a federal Schedule 1 research license. He learned he was risking losing federal funding “not just for myself, but for my university.” He couldn’t buy state-legal cannabis sold “blocks away” from his campus, though he could procure cannabis “for my own personal use, if I ever wanted to do that.” Strongin attributed this difficulty as the reason there were “so few researchers like myself in the field," and increasing focus on CBD and delta-8-THC products which could be legally sourced “as far as we know…or at least not enforced.” He remarked that his team had “bought analytical standards” and used an expensive process to refine and combine them for testing. Strongin wrapped up by encouraging committee members to support expanding research in Washington before Keiser thanked him again, requesting that “once your…study is peer reviewed, could you share that with us?” (audio - <1m, video).
    • Other research articles on dabbing cannabis concentrates include:
      • Assessing the Dangers of “Dabbing”: Mere Marijuana or Harmful New Trend? (2015)
      • To Dab or Not to Dab: Rising Concerns Regarding the Toxicity of Cannabis Concentrates (2017)
      • Cannabis dabbing: An emerging trend (2021)

• Washington State Department of Agriculture (WSDA) Policy Advisor to the Director and Legislative Liaison Kelly McLain provided legislators a briefing on the department’s hemp program before taking questions (audio - 9m, video, presentation). 
  • In April 2019, McLain testified before the Washington State House Commerce and Gaming Committee (WA House COG) on how CBD was being regulated by WSDA staff. She had since testified on several cannabis bills, usually taking a neutral position on behalf of the department:
    • Testimony on HB 2726, “Regarding marijuana-infused edible products” in January 2020.
    • Testimony on SB 5372, “Concerning hemp processor registration and a hemp extract certification” in March 2021.
    • Testimony on SB 5951, "Concerning agricultural hemp products to ensure the safe implementation of Washington state's industrial hemp program" on February 1st.
  • Speaking to "what we're seeing in our hemp space," McLain first acknowledged the background of the program. She reported that in 2021 the hemp program had “115 growers producing hemp for a variety of commercial purposes throughout the state.” She noted a variety of regulations in the department’s program:
    • Mandatory licensure of hemp producers
    • Required testing for hemp crops harvested “for commerce”
    • Limits on THC content of 0.3% “otherwise the crop must be remediated or disposed of using department approved methods”
  • After these steps, WSDA staff had no regulatory role in the subsequent processing or resulting products, stated McLain. She cited RCW 15.140.040(5), part of a hemp law passed in 2019, as making it “illegal” to put hemp extracts like CBD in food “or ingestible products” for sale in Washington, although “whole hemp hearts,” hulled hemp seed, were allowed. McLain understood that a variety of CBD and hemp products with synthesized cannabinoids were available in the state “but [they are] not legally supposed to be.”
  • For 2022, McLain anticipated there being “about 70” licensed producers, with the greatest concentration being “in the Yakima region.” She pointed out that most hemp was grown outdoors, but there were a few “indoor and greenhouse producers” as well.
  • WSDA officials submitted data on production to the U.S. Department of Agriculture (USDA) each month, she commented. In a survey of licensees about the reasons they intended to produce hemp, McLain said responses showed growers were very "cannabinoid centric" but produced hemp for a number of reasons. Her presentation showed 45 out of 70 intended their crop to be used for cannabinoid extraction, 33 “for smokeable hemp,” 24 for both seeds or fibers, and some other uses.
  • McLain acknowledged Strongin’s remarks and concurred there was “a lot of interest in doing research in this space." She then noted that WSDA leaders were standing up a Hemp in Food Task Force based on a supplemental budget appropriation approved on March 31st and would investigate “hemp derivatives as ingredients in food.” While cannabinoids hadn’t been allowed in food in the state so far, McLain recognized there was "significant interest" in the compounds, so the task force would release a report on the topic by December 1st. She said this might include "an identified pathway" for sales of CBD products outside of adult-use cannabis retail stores, and commented that several stakeholders indicated this was the “ideal” outcome for the group’s work.
    • WSDA staff formally announced the task force’s formation on May 18th.
  • Keiser inquired about limitations on the import of CBD extracts, and McLain replied there were no limitations for either end products or CBD distillate. Keiser shared her understanding that the material was being imported into Washington. McLain relayed that Washington hemp producers harvested about 10% as much hemp as Oregon cultivators, so most cannabinoid products in the state came from hemp produced elsewhere (audio - 1m, video).
  • Conway wanted to know where Washington hemp being grown for cannabinoids was ending up if their addition to foodstuffs was illegal under Washington law. McLain answered that a “significant amount” of CBD from Washington hemp was being exported, but other hemp licensees partnered with a cannabis business to have their cannabinoids used in legal cannabis items (audio - 1m, video).
    • Conway asked Oregon Liquor and Cannabis Commission (OLCC) Hemp and Processing Specialist Steven Crowley—another committee panelist—whether cannabinoids could be used as a food additive in Oregon. Crowley responded that there was a “carve out” in state law for “hemp, and hemp commodities and products” to be an adulterant in food (audio - 1m, video).
  • Saldaña asked whether state agencies were choosing “not to enforce” the law if cannabinoids were illegal in foodstuffs. McLain replied that there wasn’t a “regulatory structure setup for enforcement of legal versus illegal access.” She believed this would be the purview of local health jurisdictions and also believed these entities lacked funding for enforcement since cannabinoid products became prominent. McLain further anticipated there would need to be a “pretty significant investment and infusion into the local health jurisdictions” to encourage their leadership to take action on the illicit products (audio - 1m, video).

• WSLCB Director of Policy and External Relations Justin Nordhorn gave an update on agency activity around cannabinoid regulations and their goals going forward, then fielded committee questions (audio - 13m, video, presentation). 
  • Nordhorn’s comments were a mix of things previously disclosed with some new information. He pointed out that agency leaders had asked for request legislation on cannabinoid regulation during the 2022 legislative session due to concerns over “youth access, consumer safety, and also employee safety on the manufacturing front." Nordhorn referenced continuing efforts by agency staff to define and quantify cannabinoid “impairment,” like a deliberative dialogue session covering the topic on April 27th, as well as what cannabinoid interactions might “lessen” impairment impacts.
  • Agency officials were also seeking to assess impacts on the existing marketplace, he said, like “product innovation…and then are we going to be prepared for federal legalization?” Nordhorn also brought up previous engagements by WSLCB staff with the public, other agencies, and cannabis associations and trade groups on the topic. He felt there’d been general support for their request bill, which was repeatedly modified at stakeholder request, but that “nuances” had become an issue during the legislative session which merited “further exploration.” 
    • The WSLCB request legislation and other bills dealing with cannabinoid law received criticism from some stakeholders and weren’t enacted.
  • Nordhorn remarked that WSLCB legislative goals centered on both safety and health, particularly when it came to youth access or use of cannabinoid items. He also made clear an intention to support cannabis industry interests and development of a “framework” for regulating the products. One aspect in place currently was testing imported cannabinoids, which Nordhorn noted included heavy metal testing as one way to lower risks to consumers.
  • He anticipated an expanded emphasis by regulators on "age restricted" products, calling out how grapes weren’t restricted under state law, but wine, a product made from them, was. Similarly hemp material wouldn’t make a person “intoxicated,” Nordhorn asserted, but “as it gets converted…you could end up with a product that” may need to be age-restricted. He added this had been easier to implement with alcohol than for cannabis, where a clear standard for cannabinoid impairment had yet to be identified by experts.
    • The Washington State Supreme Court upheld an impaired driving standard for cannabis in a ruling announced on May 13th. The court unanimously affirmed the constitutionality of a per se driving standard, noting that because “the plaintiff’s own expert council had testified that some people are impaired by a THC concentration of 5.00 ng/mL,” that provision of the law had a constitutional basis. In their opinion, justices noted that “if someone has a [blood alcohol content] above the legal limit, they are guilty of DUI even if their driving is not impaired. The same is true for consumption of cannabis and driving.”
  • Nordhorn communicated that WSLCB leaders were still looking at "how do we create that line and threshold" for impairing cannabis products. Looking at standards in other states, Nordhorn offered:
    • Oregon - “Adult Use Cannabinoid”
      • “Includes delta-8 THC
      • Any artificially derived cannabinoid reasonably determined to have an intoxicating effect
      • Artificially or naturally derived tetrahydrocannabinolic acids
      • Industrial hemp commodity or product exceeding THC concentration levels established by OLCC in rule
      • OLCC set a 0.5mg THC limit on hemp products”
    • Colorado - “Adult Use Cannabis Product”
      • “All intoxicating cannabinoids
      • Artificially derived cannabinoid or industrial hemp derived product not defined as industrial hemp product
      • Any other chemical substance not defined in statute and that is identified by rule”
  • While WSLCB officials lacked oversight over hemp-derived cannabinoids until they were used in legal cannabis products, Nordhorn mentioned that other legal cannabis states allowed regulators to be involved in hemp production and processing. He shared a timeline for the agency’s interim policy outreach and rule development planning for the next year, including more deliberative dialogues scheduled with new expert panelists in May and June. Nordhorn also addressed the cannabinoid rulemaking project, making clear there would be public engagements.
  • Nordhorn stated that the board was aiming for a more modest legislative proposal in the 2023 legislative session. He noted there was planning underway for a “technical work group” at the agency to offer “advice and insight.”
  • Keiser remembered having seen a communication to licensees from WSLCB that if they were selling “these cannabinoid products” their licenses “could be in jeopardy.” She asked for additional information (audio - 2m, video). 
    • Nordhorn explained that existing law for alcohol and vapor licensees barred them from allowing "criminal conduct." Agency officials had received guidance that delta-8-THC was still a controlled substance, so selling unauthorized items may constitute criminal conduct. He clarified that tobacco licensees lacked this provision, “and so, we have gaps there.” The Enforcement and Education division at WSLCB had made some seizures, indicated Nordhorn, and continued to collect data.
  • Conway expressed some surprise about 2021 legislation passed in Oregon, HB 3000, where regulators “took it upon themselves to regulate…semi-synthetic products.” He wondered if WSLCB staff intended to move in that same direction using HB 3000 as “a model” (audio - 5m, video).
    • Nordhorn articulated an intention of agency staff to “stay within the lane of the LCB regulatory authority." Claiming staff were not interested in regulating “non-impairing hemp products,” he said ambiguity around what cannabinoids were impairing led to confusion by some in the cannabis sphere over who would regulate specific compounds. OLCC had already regulated hemp and could more readily promulgate regulations on cannabinoid items.
    • Conway followed up to inquire whether Nordhorn believed WSLCB should be given that authority since the path for regulators in Oregon had “been a tad bit easier" and lawmakers had an “obligation” to better regulate cannabinoid products. Nordhorn replied that there was a gap between hemp "harvest and the sales" but that WSLCB had been focused on compounds “causing concern around impairment” and wanted regulatory authority over them. HB 3000 "is a very interesting policy development" and could offer potential solutions, he stated.
  • Senator June Robinson was curious about the role of the Washington State Department of Health (DOH) in this process, asking about WSLCB engagement with the department and ways they could work “hand-in-hand" on the issue (audio - 4m, video).
    • WSLCB staff engagement with the department had focused on preventing youth access and administering a medical cannabis program, Nordhorn responded. He noted that the department didn’t “typically have a strong connection on the health implications” of specific product types but their request legislation had included a more prominent partnership between WSLCB, WSDA, and DOH staff on determining if a compound could be used in products beyond legal cannabis retail. Nordhorn anticipated more opportunities to engage with DOH and get their input on cannabinoid items and standards in the future.
    • Keiser recommended a more “serious look” at compounds by DOH officials with emphasis on “the potential health effects.” Nordhorn concurred with her, saying there was a concern “about byproducts” and a need for labeling synthetically created cannabinoids.
      • On April 26th and May 10th, WSLCB Policy and Rules staff anticipated opening up a new packaging and labeling (PAL) rulemaking project in June 2022.