WSLCB - Special Board Caucus
(January 2, 2019)

Here are some observations from the January 2nd Washington State Liquor and Cannabis Board (WSLCB) Special Board Caucus.

My top 3 takeaways:

• Two board interim policies on claims of “curative or therapeutic effects” and marijuana infused edible (MIE) homogenization were cleared for adoption after an additional review led by Policy and Rules Coordinator Kathy Hoffman, Licensing Compliance and Policy Manager Nicola Reid, and Licensing and Regulation Deputy Director Jeanne McShane.
  • The Board’s decision to wait on BIP-08-2018 and BIP-09-2018 was Cannabis Observer’s top takeaway from the December 11th Board Caucus.
  • BIP-08-2018 further prohibits claims of curative or therapeutic effects on cannabis product packages and advertising (audio – 8m, BIP-08-2018 as drafted in December).
    • Discussion focused on WSLCB’s hope that examples of prohibited words will eliminate some of the back and forth with licensees during packaging and labeling approval processes.
    • Reid stated prohibited words include, but are not limited to: “relief, remedy, healing. Curative, remedial, medicinal.”
    • Board Member Russ Hauge asked if these restrictions apply to medically-endorsed cannabis products. Reid claimed they do.
    • Reid stated: “…some of the industry side is, they’re taking it more of a level that this will cure cancer. But our rules are very generic and we’re seeing it more as any type of remedy that might cure anything. Because we don’t have the research out there to support that at this time. Or documented at least.”
    • Board Chair Jane Rushford asked: “…so this is emphasizing or expanding the language in rule?” Reid: “Clarifying, expanding, yes.”
    • Reid claimed that these terms are prohibited from packaging but are allowed in discussion in a “generic” manner between medical consultants and consumers in retail stores.
    • The Board did not seem fully satisfied but claimed they are “stuck” and “it feels messy” but they “don’t see what else [they] can do.”
    • Absent from this review and the mid-December review was any discussion of the board interim policy’s additional constraints on cannabis product advertising and labels. If adopted, the policy as drafted in December would prohibit:
      • “any statement or reference of the product having an effect on the body or mind;
      • any statement or reference that the product produces a useful or favorable result or effect; or
      • any statement or reference that the product impacts the health of the consumer.”
  • BIP-09-2018 will remove the word “throughout” from WAC language regarding homogeneous distribution of cannabinoids in marijuana infused solid and liquid edible products (audio – 4m, BIP-09-2018 as drafted in December).
    • WSLCB released a memo in August regarding homogenization which defined the word “throughout” as “three dimensionally incorporated into a product.”
    • Staffers acknowledged the definition affects several products they do not have a problem with, “such as trail mix or chocolate covered peanuts.”
    • The policy reversal was prompted by WSLCB visits to several processor facilities where staff learned “that the homogenization processes [in the industry] are really very robust and scientific.”
    • Absent from this review and the mid-December review was any discussion of the board interim policy’s rewrite of WAC 314-55-077(9) which changes the agency’s power to prohibit marijuana infused edible products and requires that all MIEs appear “dull” in color.
  • Cannabis Observer has not seen the exact language of the board interim policies under discussion at Wednesday’s meeting, but there was no mention of any revisions to the policies as drafted in December.
  • Hoffman confirmed the agency intends to synchronize the effective dates for all outstanding policies regarding product, packaging, and labeling approvals. The coordinated effective date will be January 1, 2020 (audio – 4m).
  • Hoffman will present the new board interim policies for adoption, along with a revision of the effective date in BIP-05-2018, at the board meeting in Spokane on January 9th.
• Hoffman presented a petition for rulemaking filed by Anne Sulton, Co-owner of retailer A Bud and a Leaf (audio – 13m).
  • Ms. Sulton proposed that the WSLCB amend the 1000 foot barrier limit written in rule as “the current measurements that are defined on the LCB website are inconsistent with the statue.”
  • Board Member Ollie Garrett asked: “is [the rule] currently saying, if there’s a school within a thousand feet… [of] a shopping center, the border is… the shopping center itself or the physical location where the store is going into?” Hoffman: “That’s the question, but the rule says, and the statute says ‘perimeter’ and it doesn’t define what ‘perimeter’ means.”
  • Hoffman relayed Assistant Attorney General Bruce Turcott’s guidance to abstain from action on the petition as there is currently active litigation on this rule.
  • Board Member Russ Hauge shared his perspective that the rule was written to align with state statute and that the agency did not have the authority to override it.
    • Hauge: “The reason we have these distances is because of federal mandate. That is the way the feds draft up their statutes about drug activity. And this harmonizes with that so that the case law expounding on that makes sense to us.”
  • Hauge added: “I don’t see any real merit in arguing over two or three hundred feet.”
  • Hauge also reminded the Board that they “have declined or denied licenses based on this statute so it would open up another level of concern for those that relocated… because of this, or didn’t site at all.”
  • The petition for rulemaking was denied.
• Executive Assistant Dustin Dickson walked through a draft itinerary for the agency’s upcoming trip to Spokane (audio – 9m).
  • Monday the 7th: Chair Rushford and Director Rick Garza will tour a retail facility, potentially meet with local legislators, then visit The Spokesman Review to record a podcast.
  • Tuesday the 8th: Member Hauge is meeting Joseph Harrington, U.S. Attorney for the Eastern District of Washington, and will follow Chair Rushford and Director Garza on a tour of a lab facility. Rushford, Garza, and Researcher Trecia Ehrlich will attend a prevention community gathering. Hauge, Garza, and Ehrlich plan to meet researchers from Washington State University. And Chair Rushford will connect with WSLCB Captain of Enforcement Sheri Lopez.
  • Wednesday the 9th: The Board Meeting will be from 10am-12pm at Spokane City Hall.  In addition to presentation of the board interim policies described above, the tentative agenda also includes the public hearing for vapor products rules (audio – 1m, CR-102).

Follow Up (January 7, 2019)

Here are the five cannabis board interim policies (BIPs) which will be presented for adoption at the Wednesday January 9th WSLCB board meeting in Spokane.

• BIP-05-2018 (current policy) – coordinates effective date to January 1, 2020
• BIP-07-2018 (current policy) – coordinates effective date to January 1, 2020
• BIP-08-2018 (as drafted in December) – identical to December draft; coordinates effective date to January 1, 2020
• BIP-09-2018 (as drafted in December) – identical to December draft; coordinates effective date to January 1, 2020
• BIP-10-2018 (current policy) – coordinates effective date to January 1, 2020; changes language of background and font colors, potentially allowing more flexibility; font colors count against three permitted accent colors.

At the December 11th board caucus, the board was prepared to adopt BIP-07, -08, -09, and -10 but pulled BIP-08 and -09 for further review. The next day, BIP-07 and -10 were adopted at the December 12th board meeting. BIP-08 and -09 were reviewed at the January 2nd special board caucus. Referencing copies of BIP-08-2018 and BIP-09-2018 from mid-December, Cannabis Observer noted the Board’s discussion did not cover the entire scope of changes included in those two draft policies. We hedged:

Cannabis Observer has not seen the exact language of the board interim policies under discussion at Wednesday’s [special board caucus] meeting [BIP-08-2018 and BIP-09-2018], but there was no mention of any revisions to the policies as drafted in December.

The policies are identical, and remain worthy of attention.

The proposed change to the language in BIP-10-2018, a currently implemented board interim policy, is surprising but consonant with guidance offered by WSLCB in their December 18th webinar. In the Cannabis Observer December 19th MIE update, we stated:

The presentation (slide 17) and Reid indicated packaging and/or label backgrounds as well as text “must be either: white, cream, grey, black, tan or brown”. This guidance conflicts with the adopted language of BIP 10-2018, which specifies allowed combinations of background and text colors.

If adopted, the change to BIP-10-2018 would implement the guidance WSLCB staffers provided in the webinar.

All five board interim policies will be presented for adoption at the Wednesday January 9th board meeting in Spokane (agenda, handouts). The agenda includes an opportunity for General Public Comment at the end of the meeting for citizens to address all three WSLCB Board Members for four minutes each. The meeting will be broadcast via webinar (registration required) and possibly on the agency’s Periscope channel.