WA House - Session
(April 7, 2023)

Here are some observations from the Friday April 7th Washington State House of Representatives (WA House) Session.

My top 3 takeaways:

• SB 5367, “Concerning the regulation of products containing [tetrahydrocannabinol] THC,” was brought up for consideration by the House, but not before one more change involving the legislation’s applicability to tribal governments which had already entered into cannabis compacts with the state.
  • The Washington State Liquor and Cannabis Board (WSLCB) request legislation, SB 5367, was approved by the Washington State Senate (WA Senate) on March 2nd.
  • In WA House, the bill was first heard by members of the Washington State House Regulated Substances and Gaming Committee (WA House RSG) on March 13th where there was concern that the WA Senate language banning “any amount of THC” wasn’t feasible for labs, and would devastate the licensed hemp sector. A Washington State Department of Agriculture (WSDA) staffer testified to a belief that the bill would reduce license renewals such that SB 5367 would “render our program insolvent.” Hemp stakeholders who testified were uniformly against the proposal, though WSLCB, several cannabis trade association members, and some public health and substance prevention leaders approved of the goals to "regulate the unregulated sales" of THC items and “protect youth."
  • WA House RSG member recommended a proposed substitute on March 20th that altered the bill in several ways, such as explicitly banning the manufacture and sale of products with synthetic cannabinoids, and differentiated “hemp consumables” from “cannabis products,” which was any consumable “with any detectable amount of THC (instead of with any amount of THC).” 
    • The bill would allow topical Cannabis Health And Beauty Aids (CHABA) and products approved by the U.S. Food and Drug Administration (FDA), but items like CBD oils, capsules, or pet food would be prohibited unless the manufacturer was a licensed cannabis processor.
      • At time of publication, new processor licenses weren’t being issued by WSLCB. SB 5080, “Expanding and improving the social equity in cannabis program,” included “up to 100” for equity applicants, though the bill had yet to be passed by the WA House. The application window for social equity retail licenses had been extended by the board until April 27th.
      • Buying a processor license from an existing license holder—also called license assumption—was possible, with several websites listing processor licenses for sale.
  • On March 31st, the Washington State House Appropriations Committee (WA House APP) hosted another hearing where staff reviewed expenditures related to WSLCB, WSDA, and the Washington State Patrol (WSP) under the bill. WSLCB Director of Legislative Affairs Marc Webster testified the agency could determine the lowest detectable level for THC in rulemaking, arguing the bill represented “very important public policy, and it doesn't cost much.”
    • The initial version of the legislation proposed a definition for “THC concentration” which stated it was the: “percent of tetrahydrocannabinol content, including any hydrogenated or structural isomer forms of THC, of any part of the plant Cannabis, or per volume or weight of cannabis product, or the combined percent of tetrahydrocannabinol and tetrahydrocannabinolic acid in any part of the plant Cannabis regardless of moisture content.” A first fiscal note by WSP staff mentioned the need for additional equipment for testing, an expense that frustrated some leaders at WSLCB, and state agencies were specifically prohibited from purchasing the equipment in substitute bill language.
    • By the WA House App hearing, the engrossed second substitute language for ‘THC concentration’ had been slightly narrowed, dropping “including any hydrogenated or structural isomer forms of THC” from the wording. However, the WSP staff analysis in the revised fiscal note calculated expenditures of $387,500 in fiscal year 2023-25, and $136,000 in future bienniums “related to new testing that they would need to perform since the bill changes the definition of THC concentration.”The analysis was pointed in mentioning there was no clarity on “how this may impact evidentiary standards” for their Crime Laboratory Division (CLD), but should “evidentiary standards require the identification of THC concentrations consistent with new and current definitions, including the new definition of THC Concentration in Section 2(uu), we will need to expand our concentration testing protocols.” WSP staff insisted that to “accomplish this, each of our three Controlled Substance Laboratories would need to acquire a Liquid Chromatography-Mass Spectrometry (LC/MS) instrument…at an estimated cost of $600K per instrument,” but because “Section 6 of the proposed legislation [barred state agencies from doing] so, therefore these costs are not included in the expenditure table” and WSP “will be unable to fully meet the new evidentiary standards created.”
      • WSDA has developed separate testing protocols for hemp in order to confirm the crop possesses less than 0.3% THC by dry weight. However, should a product have detectable levels of THC it would have to meet WSLCB testing requirements for various contaminants conducted through accredited labs.
        • At time of publication accreditation authority was undergoing a transition to the Washington State Department of Ecology (DOE).
  • At the April 3rd WA House APP executive session on SB 5367, committee members recommended that the bill be passed as amended by WA House RSG.
  • On April 6th, WA House leadership pulled two cannabis bills to the House floor calendar, one of which was SB 5367. That morning, Representative Kristine Reeves proposed a floor amendment that added “an exception to the proposed prohibition on a person manufacturing, selling, or distributing cannabis or cannabis products without a valid license issued by [WSLCB] or the Pharmacy Quality Assurance Commission, to make an exception for activities that are permitted under a cannabis agreement between Washington and a tribe.”
  • During the floor session, Reeves moved for her latest amendment to be incorporated into the proposed substitute language (audio - <1m, video).
    • Speaking of her respect for the “inherent tribal sovereignty of all of our First Nations people,” she didn’t want to “penalize” Tribal Governments, and felt the amendment would “ensure that our tribal communities, who co-manage and co-regulate this product, continue to maintain tribal sovereignty in this process” (audio - 1m, video).
    • Representative Kelly Chambers gave straightforward support: “we agree with the amendment; please vote yes” (audio - <1m, video).
    • The amendment was adopted in a voice vote by members in the chamber and voting remotely (audio - <1m, video).
  • After amending the language recommended by WA House RSG, representatives then voted to incorporate those changes into SB 5367. Hearing no objections, Deputy Speaker Pro Tem Dan Bronoske stated “the committee amendment…as amended is adopted” (audio - <1m, video).

• When the bill was moved to third reading, members provided their final remarks on the need to protect youth before a vote indicated overwhelming support by the chamber.
  • Representative Sharon Wylie, mused that “as always, human ingenuity moves faster than government,” and the “purpose of this bill [was] to stop THC-containing gummies from being sold to everybody who wants them in convenience stores.” She observed that although federal authorities had “not moved on our market here…they have come a long way in the market of hemp” and policymakers were realizing that “THC can be produced out of hemp.” She felt members of both chambers had worked together “and within our own body to come up with a way to thread the needle of protecting people and protecting our market in a good way, a healthy way, and to respect the hemp industry, which we all support. We didn't quite get there.” Nonetheless, Wylie argued there was a necessity in protecting children and others “in our communities from consuming products that may contain an unexpected amount of THC” (audio - 2m, video).
  • Chambers called for a yes on the bill, noting that subsequent to “federal legalization of hemp…many products containing intoxicating THC [were] being sold in the marketplace, which is outside of the [Initiative] 502 regulated system.” Because hemp “products that are being created…really mimic the things that you would find at a 502 cannabis store,” she wanted the law to limit those items’ availability. She stressed that CHABA products would remain available, and with new language “recognizing [tribal] sovereignty, that they would also continue to sell those products in their regulated stores like the rest of the cannabis-derived THC products.” Chambers wanted to stop anyone under 21 from “having access to…gummies with shockingly high amounts of THC in them just available at the cash register at your local gas station. We've seen instances over and over again of kids overdosing on these products” (audio - 2m, video).
  • Representative Jim Walsh, agreed with the sentiments expressed by Wylie and Chambers, but explained he would be opposing SB 5367 as he was under the impression the policy was “not fully baked, I am not confident that the policy as structured is going to be as effective as we hope it would be in preventing minors” from accessing products with THC. Though he did appreciate an “effort to try to move these products into the well-regulated I-502 retail space…I'm not convinced that the policy as drafted is going to do that completely.” Walsh thought “too often we pass policy that means well but is not fully developed. This bill is only one example of that, and it may not even be the worst example,” but he felt “it hurts the hemp industry, which is a burgeoning industry that we hope to encourage in this state” and lawmakers needed to “think through the consequences, intended and unintended, of the bills we pass, and I believe this bill—well-intended—is not there yet” (audio - 2m, video).
  • A roll call vote was done, and the bill was passed 93-3 with two members excused. Bronoske asked if any member wanted to change their vote, but only Walsh, and Representatives Joel McEntire and Melanie Morgan voted ‘no’ (audio - 1m, video).
    • In WA House RSG, Morgan had described herself as having “very soft” opposition to the bill out of the belief it had been crafted over the “exclusion” of the hemp industry.

• In a rare instance of legislative “reconsideration,” representatives took another vote on SB 5367, with the opposition to the measure growing to six, though the vast majority of members affirmed their support for passing the bill.
  • Lawmakers had moved onto other legislation when a legislative staffer briefly conversed with Bronoske and someone on the floor who wasn’t on video. Bronoske then declared that “with the consent of the house, the house will immediately reconsider the vote” on SB 5367 (audio - <1m, video).
    • According to the overview of the legislative process for third readings: "Under certain circumstances, the chamber may decide to reconsider the vote that was taken; in that case, the chamber has twenty-four hours to make a motion to reconsider the bill.” which allowed the chamber to “vote again on a question previously decided by the body.”
  • The reconsideration vote on final passage of the bill as amended by the members resulted in 90-6 in support, with Representatives Suzanne Schmidt and Bruce Chandler, both Republicans, joined by Democrat Sharlett Mena in opposing the measure. Bronoske declared the legislation had passed WA House “on reconsideration” (audio - 1m, video).
  • Due to the changes to SB 5367, senators would need to either vote to concur with the WA House version of the bill, or reject the changes and go to a conference committee“to discuss specific differences of opinion between the House and Senate” along with any different language. A resulting conference committee report would have negotiated language and “Both houses must adopt the conference committee report for the bill to pass the Legislature.”