WACA - Spring Meeting - 2022 - WSDA Engagement
(June 15, 2022)

Here are some observations from the Wednesday June 15th Washington CannaBusiness Association (WACA) 2022 Spring Meeting.

My top 3 takeaways:

• WSDA Hemp Program Manager Trecia Ehrlich gave attendees an overview of the department’s role in regulating and certifying hemp activities.
  • Ehrlich hosted a webinar about hemp production on March 24th.
  • Starting in 2014, Ehrlich said the federal government allowed hemp cultivation at the state level as “just an experiment” and not for commercial use. But it was a “costly” experiment, she explained, and few participated once WSDA leaders established an Industrial Hemp Research Pilot (IHRP).
    • The pilot program plan received approval through a process overseen by the U.S. Department of Agriculture (USDA). 
    • See the letter welcoming stakeholders to the pilot’s ListServ from Emily Febles, the original Industrial Hemp Program Coordinator for WSDA, as well as a November 2016 department newsletter covering the IHRP survey.
  • The IHRP was replaced with the current program after federal legalization of hemp in the 2018 Agricultural Improvement Act (“the Farm Bill”) and subsequent legalization of hemp production by state lawmakers in 2019. Ehrlich remarked that federal policy “allowed for commerce” of hemp and let states set “their own programs, that would, in turn report to the USDA.” The WSDA hemp program licensed “farmers who produce hemp” and part of her role was facilitating transfer of information to federal authorities.
  • Commenting that she’d heard “rumors that hemp is not really very regulated,” Ehrlich acknowledged that it might be “accurate to say a lot of hemp products are not very regulated” but she considered hemp plants grown in Washington to be “actually quite regulated.” She noted that all hemp licensees receive an annual visit from WSDA staff who “go to their farm and we take a sample of that crop” prior to harvest which was “tested at a laboratory, and [the department reported] those lab results to the USDA.” Ehrlich stated that sampling and testing were required “within 30 days prior to its harvest” so there was time to get results back to licensees. After getting a certificate of analysis (COA) for a hemp crop, Ehrlich said WSDA officials issued a “THC Certificate” so that parties doing business with a hemp licensee could be assured that department representatives were “the ones that sampled that crop.”
    • Plants with a tetrahydrocannabinol (THC) content above 0.3% had to be “remediated” or "disposed of," though she indicated that this was rare as farmers got “better at choosing their seeds.” Owing to the expense, plant remediation wasn’t common or encouraged by WSDA staff.
    • Learn more from WSDA publications on Hemp Production Pre-harvest Sampling Protocol and Testing Protocol for Identifying Delta-9 Tetrahydrocannabinol (THC) Concentration in Hemp.
  • After observing a “pretty big reduction” in the number of people licensed to produce hemp in 2022, Ehrlich told the group the program “might’ve had 150” licensees a few years earlier, but had “70 growers right now.” For this reason she believed there wasn’t “a ton of hemp out there being grown in Washington state.” Following the completion of testing and issuance of a THC Certificate, Ehlich said WSDA staff “exit the process” and she wasn’t certain how crops were sold. She remarked that “about half” of their current licensees were producing for “some type of…cannabinoid reason” and that other hemp producing states were “less cannabinoid-centric.” Ehrlich indicated that several cannabinoid-producing hemp farmers had exited the market, “I’m sure you can imagine why.” She hoped there would be more interest in products like “hempcrete, fiber, grain” as well as businesses “just doing research.”
  • Ehrlich acknowledged SB 5372, a law signed in April 2021 “Concerning hemp processor registration and a hemp extract certification,” which led department leaders to open a rulemaking project in July 2021. She indicated the new rules would go into effect on July 8th enabling WSDA Food Safety Division staff to inspect processor facilities on request - even those making food items which couldn’t legally be sold in Washington, presumably “so that they can sell it to another state.”
    • An August 2019 statement from the department stated, “While [cannabidiol] CBD is not allowed as a food ingredient, WSDA licensed food processors can currently use other hemp products in food, such as hulled hemp seeds, hemp seed protein [powder] and hemp seed oil, provided they comply with all other requirements. FDA has determined that these components are Generally Recognized as Safe (GRAS) based on federal requirements.”
  • Though WSDA neither licensed nor regulated hemp processing, Ehrlich indicated that voluntary registration provided documentation as a way to enhance banking opportunities for processors, “for export reasons,” and in the event a law enforcement agency investigated a processing facility. She made clear law enforcement officials retained the power to test materials found at hemp processing facilities or investigate alleged illegal activity, while WSDA officials could confirm or deny whether a business or location had been disclosed to the department. Ehrlich conveyed that this differed from licensed producers where WSDA took the lead on testing suspect crops or plant materials to assist law enforcement.
    • Check out the hemp processor registration application. 

• Ehrlich then went over some cannabis-related projects underway, including a task force on hemp in food, an organic equivalent cannabis classification, and testing laboratory standards.
  • Washington State Hemp in Food Task Force - Established as a proviso to the WSDA budget, Ehrlich said the task force was requested in part because “people are putting a lot of hemp in food, illegally.” Charged with considering “what a more legal avenue might look like,” her understanding was that the group would begin meeting the following month. The goal for task force members was to “identify a pathway to increase market access and legally sell hemp-containing food and beverages” outside of cannabis retailer stores, added Ehrlich.
    • See the May 18th letter from WSDA seeking members for the task force, which stated it would begin on June 20th.
  • Organic Equivalent Cannabis - Pointing to a long-postponed legislative request to create a program establishing an organic equivalent standard for cannabis as ‘organic’ was a federal labeling term, Ehrlich noted that another 2022 supplemental budget allocation had been made “solely for rulemaking for a voluntary cannabis certification program that is consistent with the department's existing organics program, as authorized by chapter 317, Laws of 2017.” While development of the standard had “turned out to be a lot more technical and expensive work than” initially expected by staff, she said that with the funds secured and a deadline of June 30th, 2023, “hopefully you will see an actual organic-like certification for high-THC cannabis coming from the WSDA.”
    • Legislators last heard about the organic-comparable cannabis certification program, and why it had been delayed, in October 2021.
  • Cannabis Testing Lab Standards - With the passage of HB 1859 on March 24th, Ehrlich remarked that the law mandated the formation of an Interagency Coordination Team (ICT) composed of representatives from WSDA, the Washington State Liquor and Cannabis Board (WSLCB), and the Washington State Department of Health (DOH).
    • She reported the ICT would be “led by WSDA, and rulemaking will occur at WSDA” in coordination with the other agencies ahead of the transfer of authority over cannabis laboratory standards. Ehrlich shared that WSLCB had “already filled their Chemist 4 and is looking to hire one additional chemist.” A memorandum of understanding was being drafted by participating agencies, she added, to “identify roles and responsibilities.” 
    • Saying that WSDA had received “one time funding” for the ICT while the other agencies received “ongoing funding,” Ehrlich made a pitch for more “more funding please” on behalf of her department. WSDA received some funding from the dedicated marijuana account but the agency also supported the sector in a “variety of ways” cited by Ehrlich including “plant pathology” resources, “our pesticide compliance team,” and lab work done by department staff.
  • Ehrlich noted she was going to be taking on the role of Cannabis Coordinator at WSDA, which had been “an internal role” but was gaining the function of coordinating existing external cannabis efforts at the department. She would also serve a larger role in “the policy component of cannabis work at WSDA” and welcomed stakeholder input, but was also nearing a period of maternity leave from August to November. “So please don’t ask me any questions,” joked Ehrlich, encouraging engagement with either Policy Advisor to the Director and Legislative Liaison Kelly McLain-Aardal or her staff. She promised to be back in time for the 2023 legislative session, which she anticipated would be “really wild…sounds like it’s going to be intense.”
    • McLain-Aardal briefed legislators about WSDA’s hemp program and spoke to CBD regulations on May 10th.

• Three questions were posed to Ehrlich involving the possible regulation of cannabis producers by WSDA, hemp testing protocols, and the hemp in food task force.
  • Gregory Foster, Cannabis Observer Founder, brought up the Washington State Legislative Task Force on Social Equity in Cannabis (WA SECTF) which was mandated to make recommendations on “the social equity impact of shifting primary regulation of cannabis production from the board to the department of agriculture, including potential impacts to the employment rights of workers.” He asked for her perspective on “challenges” or “complications” of such a transition, as well as ways in which it could be “pretty good” for the state’s cannabis sector. Ehrlich prefaced that she would be “on the social equity task force” work group looking at that recommendation. She asserted that WSDA staff were well versed in “supporting farmers” both in production and marketing for “domestic exports of an agricultural commodity.” Ehrlich conceded the department wasn’t accustomed to “the high-level financial investigations that the LCB will take on” and, given federal restrictions around cannabis, other “arenas that relate to cannabis licensure that the WSDA does not have experience in.” The department still had plenty to offer the sector in terms of oversight and the eventual WA SECTF recommendation would better reflect the perspectives of stakeholders other than herself, reasoned Ehrlich.
  • Paige Berger, Hygge Farms Co-Founder, delved into hemp testing policy with Ehrlich, posing several questions.
    • Berger inquired why hemp testing was mandated to be done within 30 days before harvesting plants. Ehrlich stated that it was a USDA requirement in order for the plants to be “legally defined” as hemp, and helped identify crops needing to “be disposed of, or remediated.” She confirmed post-harvest retesting wasn’t allowed, but that within the 30 day window ahead of harvest, if a licensee’s sample “tests hot” by being over 0.3% THC, they can ask for a re-sampling and new test, “and a couple times” it does end up passing.
    • Berger then asked about the frequency of hemp testing. Ehrlich responded that most hemp licensees had a single harvest between October and November, several harvested twice annually, and a few “do microgreens or indoor grows” with several harvests a year. The majority of licensees were only being tested once a year, she concluded.
    • Berger wondered about possible “synergy” by harmonizing the testing needs of hemp and cannabis. Ehrlich saw several complications to aligning those testing needs, citing the hiring of seasonal inspectors who had to follow USDA protocols rather than state-level cannabis rules as well as difficulty around getting samples to the labs. She recognized the potential for synergy, “but it’s not a simple idea.”
    • A final inquiry from Berger was whether WSDA officials tested concentrated hemp products. Ehrlich said they didn’t, but department staff “predominantly work with labs” which also tested legal cannabis concentrates. She mentioned IEH Laboratories and Consulting Group as a lab outside of the cannabis sector that WSDA had partnered with and whom she knew had “done specific end product testing…on cannabinoid infused foods” for federal agencies.
  • Jim Makoso, Flowe Technology CEO, Lucid Lab Group Director, and a WA SECTF appointee, had a question about the hemp in food task force and the challenges they faced. Ehrlich’s impression was that McLain-Aardal or the food safety staff at WSDA would have more substantive insights. She saw a specific challenge for WSDA, which had “historically” kept cannabis policymaking at arm's length since “a lot of our commodities receive federal funding, and so that conflict always creates tension” so long as federal prohibition remained.