WSLCB - Deliberative Dialogue - Cannabis Impairment
(May 31, 2022)

Here are some observations from the Tuesday May 31st Washington State Liquor and Cannabis Board (WSLCB) Deliberative Dialogue on Cannabis Impairment.

My top 4 takeaways:

• Agency representatives convened the dialogue to continue discussion around identifying and regulating cannabinoids which cause impairment.
  • Regulating cannabinoid products beyond those containing delta-9-tetrahydrocannabinol (delta-9-THC) became an increasing focus of WSLCB staff ahead of the 2022 legislative session. Agency request legislation HB 1668 and other bills pertaining to cannabinoid regulation received criticism for their concepts of—or lack thereof—what constituted impairing cannabinoids. The most recent dialogue on the topic was on April 27th.
  • Policy and Rules Manager Kathy Hoffman welcomed panelists and attendees, informing them that following introductions they would begin a “moderated panel discussion” on several questions from WSLCB staff before taking questions from the public. She articulated the goal as building “an understanding of how we might determine and define what THC compounds are, and are not, impairing” (audio - 4m, video).
    • The series of dialogues, the first of which was on cannabis plant chemistry in June 2021, would continue as a way to “inform the evaluation of THC compound policy and rule development.” Hoffman mentioned regulatory actions like an April 2021 policy statement about delta-8-THC and other cannabinoids along with a rulemaking project on THC which concluded in October 2021 as precursors to HB 1668. Though the bill “did not advance,” she commented that officials remained interested in “the goal of how we might regulate these emerging compounds.” Comments from the meeting would join a workbook Hoffman noted was being “organized by theme” for presentation to board members and then the public.
  • Hoffman asked attendees comfortable with doing so to identify themselves and their affiliation in the event chat box, then led introductions of the panelists (audio - <1m, video).
  • Sheri Jenkins, Washington State Patrol (WSP) Crime Laboratory Forensic Technical Lead (audio - 1m, video)
    • With over 21 years experience in the crime lab, Jenkins said she was charged with “making sure we meet all of our accreditation standards” and participated in the “validation process” for new methods used by the lab. Following cannabis legalization in Washington, she was part of the WSP team updating their cannabis testing protocols, analyzing cases, and “testifying in court as necessary.” 
  • Michael Milburn, Impairment Science Founder and Chief Scientist (audio - 1m, video) 
    • A retired UMass Boston Professor of Psychology with 40 years teaching experience, Milburn’s company designed the “Druid impairment measurement app” which used cognitive science techniques to “measure impairment from any source in about three minutes.” He’d been motivated by the legalization of cannabis in Massachusetts “and the idiosyncratic reactions to THC that different individuals have.” Milburn remarked that the Druid app measured “cognitive motor impairment by measuring actual cognitive motor behavior” such as “reaction time.”
  • David Northrop, WSP Marysville Crime Laboratory Manager (audio - 1m, video) 
    • Having been with the crime lab for more than 30 years, Northrop told attendees he was “the management liaison for our materials analysis group of chemists” for the whole state. He kept that team apprised of legislative changes impacting their work and did little direct case work. Northrop said there was interest in “seeing how the proposed legislation, for regulatory purposes, interfaces with the legal definitions” relied upon by the crime labs.
  • Nicholas Lovrich, Washington State University (WSU) School of Politics, Philosophy and Public Affairs Emeritus Regents Professor (audio - 3m, video) 
    • Lovrich had been looking at cannabis policy “prior to legalization” and studied “the impact of legalization on law enforcement and the courts and corrections systems in Washington and Colorado.” He explained that this research involved years of interviews with law enforcement and court officials about challenges including “impairment determination for officers who are trained to identify alcohol impairment” but had more difficulties assessing cannabis use. Lovrich stated he’d been working with Milburn on the Druid app for individuals to detect cannabis impairment against “their own baseline.”
      • Lovrich researched cannabis policy and policing, and contributed to other studies conducted by WSU researchers including:
        • Marijuana and Vulnerable Populations: Examining Race and Criminal Justice Outcomes in the I-502 Era (2018)
        • Growing Cannabis Research in Washington State: Progress, Challenges, & Next Steps (2019)
        • Did marijuana legalization in Washington State reduce racial disparities in adult marijuana arrests? (2019)
  • Justin Nordhorn, Director of Policy and External Affairs, mentioned how HB 1668 was an attempt by WSLCB leaders to regulate “cannabinoids that are other than delta-9[-THC]...that could create impairment.” He said agency staff were considering alternative wording but were attempting to determine what substances “should we be trying to bring into the regulated market” and keep away from youth (audio - 2m, video). 

• Policy and Rules Manager Kathy Hoffman posed a series of questions to panelists about defining impairment, what products to regulate, and “age gating” access.
  • Hoffman began by asking the experts to define impairment, something she inquired about during the April 27th dialogue, as she wondered how regulators could best identify “what is and is not impairing” in cannabis (audio - 8m, video). 
    • Northrop’s perspective was that if compounds caused "social...issues" then policymakers needed to “define those things.”
      • The attitude of WSP Crime Lab staff, in his telling, was that "when laws are passed we are required to respond to those laws and to provide expert, scientific analysis of various materials to determine whether or not those particular materials are present in" evidence or items “submitted to us.” As laws changed, the lab tailored “our analytical procedures in order to meet the requirements of the law,” Northrop established.
      • Initiative 502 reoriented the definition of cannabis from “plant material to now, something that was defined by how much THC it contains,” he said, “greater than 0.3% THC.” Whereas before, the lab had used “botanical features” of a plant sample as well as “a simple chemical test” to “say ‘this material is marijuana’,” Northrop commented that WSP scientists had to move to a “quantitative analysis” of THC in order to “say that that material was marijuana.”
      • If WSLCB staff were pursuing legislation that could alter “definitions in the criminal statutes,” he wanted to “be able to know whether or not that can be done analytically or if what is being proposed” would impact the lab’s ability to “meet legal definitions in courts of law.” Northrop had found “as [bills] are written, sometimes they may, or may not make sense scientifically from an analytical chemistry perspective.”
    • Milburn pointed out that “people’s reactions can be really idiosyncratic” and individuals “can develop tolerance to THC,” including medical cannabis patients who could have “a very high level of THC in the blood and still show little or no impairment.” His goal was for people to use the Druid app to self-administer cognitive motor behavior tests before driving in “three minutes or less.” Milburn hoped that “new synthetic cannabinoids…that are potentially impairing” would be evaluated “with a good measure of impairment.” Hoping to offer a faster impairment detection method, he touted research conducted which validated the app’s efficiency showing “it was sensitive enough to distinguish different levels of impairment from different amounts of THC that a person consumes.” Milburn believed his app could serve a purpose for both regulators and people consuming cannabis or alcohol who wanted a “tool to actually be responsible.”
    • Jenkins felt "we do need to worry about controlling some things, or making some limits on things.” The problem was a lack of research to effectively “define all of those things that are impairing or could be impairing,” which she suggested could be more complicated for a “polydrug user.” Jenkins reasoned that with more research there would be a better “basis for what we actually define in our own laws.” Until then, she suggested the state do more to regulate “some of these compounds for people under the age of 21, who are not yet legal to possess them.”
    • Lovrich stated that “the number of compounds and products that are emerging after the legalization of hemp makes it really impossible to…report on a scientific basis of our knowledge of what’s impairing, and what isn’t impairing, and for whom, and at what age level, and with what degree of ingestion, and method.” He summed it up as “weak science” in the face of “a fast developing market of new products that are potentially impairing,” terming it "not a good place for law enforcement to be in" or for legislators. Beyond more research, he pointed to a U.S. Food and Drug Administration (FDA) warning letter on hemp-derived products which he seemed confident was a preamble towards better federal guidance for state-level policymakers for prioritizing research. Setting a “standard for impairment” would be crucial for defining testing standards, argued Lovrich, who pointed to Druid’s use by “Canopy…of Canada…the world’s largest medical marijuana provider” for patients there to “set their baseline” and then determine whether “the use of medical marijuana is impairing them.” He further cautioned that reactions to substances could be individualized since most chemicals were “highly variable in how they affect people” (audio - 6m, video). 
  • Jenkin’s reply prompted Hoffman to ask “about age gating,” or how to classify some cannabinoid product groups as 21+ products (audio - 4m, video). 
    • Jenkins’ view was that there was suitable research to suggest delta-8-THC “does have physiological effects on people,” and that “pretty much any THC isomer could, in theory," be declared age restricted. She was in agreement that more research needed to be done, but delta-8-THC products “and some of the other THC isomers certainly could be something” regulated to discourage use by persons under 21.
    • Shortly after cannabis legalization, Northrop said authorities realized that the plant produced tetrahydrocannabinolic acid (THC-A) which became “converted by heat or light” into THC. This meant plants could possess a large amount of THC-A while still being “in the hemp region” based on THC testing, he remarked. Similarly, Northrop felt policymakers hadn’t appreciated the “relatively easy” methods to convert cannabidiol (CBD) extracted from hemp crops “into delta-8-THC” and warned that “widely available” CBD products could be converted into delta-8-THC. Without a better grasp on the impairing properties of cannabinoids, he felt regulating such conversions became “really problematic.”
  • Milburn had a question about requiring cannabis licensees “to do impairment testing on whatever they’re going to sell” before “too many people O.D. [overdose] on them.” Hoffman answered that regulating this through “THC concentration, which is what we’re looking at” was part of why agency officials had convened the dialogues, suggesting they wanted “THC buckets” for easily classifying “what will be cannabis” in law (audio - 2m, video). 
  • Nordhorn moved the discussion towards what WSLCB staff could do to determine whether “products should come in” to the state’s regulated markets (audio - 13m, video). 
    • Northrop talked about WSP efforts to influence WSLCB agency request legislation, raised the specter of home conversion of cannabinoids, and suggested a strategy for age gating of all cannabinoids.
      • In looking at the various attempts at cannabinoid regulation during the 2022 legislative session, Northrop alleged that several definitions in bills “trying to deal with that regulatory aspect of things…was creating a conflict with the legal definitions from a criminal standpoint.” He intended to work with WSLCB staff to address that, suggesting he was comfortable with legislation outlawing the sale of delta-8-THC products.
      • Since any company could legally sell CBD products within Washington, Northrop imagined someone could buy cannabidiol oil, “go home, and convert it to delta-8, and so that then becomes the challenge.” He worried about the “illicit use of a licit material.”
      • After adult-use legalization, those under 21 were “not supposed to have access to anything,” and Northrop referenced how WSP lobbied to “amend that definition so that for those under 21…it didn’t matter what the concentration of THC was, if there was any THC in the plant material, that was considered something they weren’t supposed to have access to.” This meant that crime lab staff only had to prove a juvenile possessed material with THC, he said, meaning that it would be “not purchasable” regardless of whether there was CBD or other cannabinoids present.
    • Milburn referenced the state per se impaired driving standard of five nanograms of THC per milliliter of blood as the "wrong direction to go," since people like patients might “develop tolerance” over time. He wanted future impairment testing to rely upon Druid or a similar app, “in combination, potentially, with a blood test that identifies…things that are demonstrated to cause impairment.”
    • “Really, right now, we need to see the evidence of impairment," stated Jenkins, rather than trying to define it. Whether through Druid or “more traditional techniques" used by police, impairment testing was “very dependent on the person,” she added. Because converting CBD into other cannabinoids was a “relatively simple process” even if it didn’t produce “the best yield,” Jenkins then claimed CBD “in acidic environments” such as ketchup or lemonade could lead CBD content to “convert on their own.” She was under the impression that anyone with a “bit of education” and a willingness to experiment could be “quite effective at doing this.”
    • Lovrich had heard from law enforcement officers that judging impairment, “especially polydrug” use, was mostly gauged through "standard field sobriety tests" but that “none of them feel really confident” they’re being sufficiently trained on the matter. He said he’d observed three “separate Green Lab trainings where actual consumption of cannabis products…took place and then the officers could observe the changes in behavior associated with that.” What he heard from participating officers was that those trainings were very useful since “the law is…putting every responsibility on our shoulder to” defend charges of impairment in a court of law. Lovrich wanted law enforcement officers to have more tools to determine impairment, relaying an officer’s story about the “tough decision to make” when confronted with a driver they believed was impaired, but whom they doubted could “afford to have that kind of disruption” to their lives. He shared how the officer wanted as many objective methods as possible for determining if someone was too impaired to drive.
  • Hoffman took the conversation back to age limits, asking if the general attitude was that regulators should focus on regulating youth access to cannabinoid products instead of aiming for a definition of adult impairment (audio - 5m, video). 
    • Lovrich described how he’d been struck by lawmakers in Michigan whose legalization of cannabis included a task force on impaired driving that reported on per se impairment standards in March 2019. They’d “determined it was a mistake to do a per se law” because people’s responses to cannabis could be so different, he remarked, and instead focused on “training of officers…to opine impairment when they see it in the field” instead of reliance upon a “blood standard.”
      • Find out more resources on Marijuana and Driving from the Michigan State Police.
    • Lovrich was aware there was “a very high level of investment in our toxicology lab" in using blood testing as evidence, but “every prosecutor I talk to” told him the “five nanogram level was a mistake.” He’d heard from them that officers were seeing that cannabis didn’t impact the body “the same way as alcohol" and juries were hesitant to convict drivers with less THC in their blood than the legal limit. "I don't see any alternative” to determining impairment in the moment, Lovrich clarified, he just knew officials couldn’t rely "on the chemistry of the blood" alone.

• Several attendees brought up questions about impairment criteria, cannabinoid conversion by private citizens, polydrug impairment, cannabinoid research, and the consequences of per se driving standards.
  • Christina Phelps, The Cronos Group Head of U.S. Regulatory Affairs, asked for comment on “some proposed criteria for screening specific cannabinoids for impairing/intoxicating potential” before items were sold in stores. Her perspective was that a “standard ought to be set by objective measurements, not self-descriptors, including physiological standards that are objective, reproducible, and independently verifiable by companies and regulators” (audio - 5m, video). 
    • Jenkins responded that this wouldn’t be achievable without more “peer-reviewed and published” research.
    • Milburn agreed with Phelps’ call for a scientifically defensible standard.
    • Northrop also demurred and wished WSP “toxicology folks” would weigh in because when the per se standard was proposed they had been “very opposed to that level being set.” He emphasized that he and Jenkins were more “analytical chemists than toxicologists” but they were in agreement the issue was “complex.”
    • Phelps had shared potential criteria in the chat that referenced impairment standards proposed in an amendment drafted by the U.S. Hemp Roundtable for Colorado legislation SB22-205, “Intoxicating Hemp And Tetrahydrocannabinol Products.” The bill was passed by the state legislature on May 18th without the group’s proposed language on impairment.
  • Keegan Skeate, Cannlytics Founder, wanted to know whether there should “be a null hypothesis of no effect and upon evidence of a detrimental effect then look at action…[d]oesn't conversion to delta 8 require heavy solvents such as methanol? Is it realistic that someone would really convert cbd to delta 8 ‘at home’ on a casual basis?” (audio - 3m, video) 
    • Northrop affirmed home chemistry was possible rather than a realistic scenario, telling attendees that “we’ve proved it, it's very easy to do." He drew a comparison to “a rash” of methamphetamine labs run by people with little scientific aptitude, leading him to believe "it can be done, it is being done, it’s not a theoretical."
    • Jenkins follow up to say this might not be a situation of people purchasing CBD off the open market for home conversion because “there is definitely a black market that exists in this state. It is very robust. People are going on their own…Like it or not people are running things out the back door of regulated industry.” Furthermore, unregulated CBD was being brought in “from out of state.” Jenkins called for officials to confront Washington’s “robust black market” which was making products available to children “we as a society have agreed we don't want them exposed to."
  • Amanda Dugger, Spokane Regional Health District (SRHD) Youth Cannabis and Commercial Tobacco Prevention Program, asked whether it would be difficult to “determine impairment just for Marijauna as there is many who are polly users?” (audio - 2m, video)
    • Milburn noted that setting a per se cannabis limit and a blood alcohol content limit still allowed for a person to “be below both of those but they have a synergistic effect and can create more substantial impairment.” He again pointed to Druid as focused on identifying evidence of impairment while avoiding “loopholes” from setting definitive impairment thresholds per substance.
    • Dugger spoke at a September 2020 board meeting in her capacity as the Greater Spokane Substance Abuse Council (GSSAC) Community Engagement Specialist.
  • Paul Manzanares, Innovators of Today Technical Consultant, inquired whether “the acidic conditions of the stomach…make delta-8 a natural human metabolite of CBD?” (audio - 2m, video). 
    • Jenkins didn’t know, explaining that “what we are seeing for that conversion is already done, it’s being ingested.” Moreover, the “THC isomer-containing products” she’d been seeing were already in concentrates or infused products that were mostly inhaled.
    • Milburn thought a conversation process from ingesting infused edibles was unlikely “given the fact that if someone makes brownies they have to cook the flower” and that some type of heating process would have had to have already activated THC isomers.
    • The question of the conversion of CBD into potentially psychoactive cannabinoids following ingestion had been studied for years. A review of available research published in November 2020 found, in part, “While the literature is contradictory, most studies suggest that CBD is not converted to psychotropic THC under in vivo conditions.”
  • Jim MacRae, Straight Line Analytics Founder, wanted to know what “the scientists on the panel involved in per se DUI determinations based on such miniscule levels of THC think about the consequences their tests enable and the public harms caused by such irrational enforcement standards? Do the other panelists have any related thoughts?” (audio - 3m, video)
    • In the chat box, MacRae described his thinking on the problem:
      • “based on current THC per se DUI of law: The average adult in America is serviced by about 5 liters of whole blood.
      • At a threshold of 5 ng THC per ml whole blood, the current per se DUI threshold is crossed whenever the blood of an average adult contains any more than 25,000 ng of THC, in total
      • Assume, further, that the average ½ gram joint of flower-grade cannabis (at 18% THC) contains 90 mg of THC. If 100% of that THC were ingested by an average adult, as little as 0.0278% of those 90mg would need to be present in the blood in order to fulfill the per se DUI threshold.”
    • "I am not a toxicologist," stressed Jenkins. As a “solid dose drug analyst," she analyzed materials and decided there was nothing she would choose to say on the topic.
    • Northrop similarly felt it was up to WSP “toxicology folks to…weigh in on that.”
    • As the dialogue was focused on WSLCB regulations, Hoffman didn’t think the inquiry "helps to service this conversation" but was worth looking into in the future.
    • The Washington State Supreme Court upheld the per se impaired driving standard for cannabis in a ruling announced on May 13th, unanimously affirming its constitutionality in part because “the plaintiff’s own expert council had testified that some people are impaired by a THC concentration of 5.00 ng/mL.” The justices noted “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.”
  • Caitlein Ryan, The Cannabis Alliance Board President, asked about possible pitfalls from “creating a definition of impairment before we have more research” (audio - 4m, video). 
    • Jenkins had learned "when you go to court and testify" without a scientific basis for a position, “it’s really hard to defend” your testimony. Without “something solid behind our use of the term ‘impairing’ it’s really hard” to prosecute. She wasn’t advocating waiting "years" to define impairment, but believed any standard needed to be legally defensible.
    • Lauding Druid, Milburn said its advantages included using “the standard of the blood alcohol concentration” of .08% to calibrate the app’s “objective measure” for physiological impairment. He mentioned how “antihistamines can cause impairment" but there’s “no breathalyzer test for Benadryl," so there needed to be “some equivalent standard of impairment."
  • Dugger called attention to how many people had called for more research to be conducted, wanting to know “How could this research be done?” (audio - 5m, video) 
    • Lovrich brought up an observation from “the Maui Conference of…State Attorney Generals” that “everyone has the same problem” with a “flood of products" that officials weren’t sure were impairing. He called for “a national consortium" among those dealing with state regulation to coordinate research. Lovrich believed “we need to get something moving,” feeling that attorneys general and state-level regulators needed to organize a unified response to “what will we accept as evidence of impairing." Impairment could be “tricky” because it depended on the activity being undertaken, though his research concentrated on “impairment with regard to driving” or operating machinery safely.
      • At publication time, the Cannabis Regulators Association (CANNRA) had established a “Special Committee on Cannabinoid Hemp.”
    • Milburn had seen that “research related to cannabinoids is really expensive" making “some kind of government funding" necessary.

• WSLCB staff offered some final thoughts and next steps on outreach, including the date of the next deliberative dialogue on cannabinoid impairment.
  • Hoffman told attendees that a third dialogue was “tentatively” scheduled to be hosted by agency representatives on June 21st and would have a “behavioral health” emphasis (audio - 1m, video).
  • Nordhorn voiced his appreciation, highlighting the call for collaboration on cannabis research, and remained optimistic that what staff were learning would contribute to their rulemaking work on cannabinoid regulation and possible agency request legislation (audio - 1m, video). 
  • Hoffman reported that staff would forward additional questions received at rules@lcb.wa.gov to panelists. She thanked attendees for their engagement, and commented that cannabis legalization had “advanced much more rapidly than we knew” when voters approved Initiative 502 in 2012 (audio - 2m, video).