WA Hemp in Food Task Force - Meeting
(May 18, 2023)

Here are some observations from the Thursday May 18th Washington State Hemp in Food Task Force (WA Hemp in Food Task Force) Meeting.

My top 3 takeaways:

• Members convened to discuss the implications of a new law covering hemp consumable products.
  • A 2022 request bill by the Washington State Liquor and Cannabis Board (WSLCB) attempted to address the availability of hemp consumables which might be impairing by bringing items under WSLCB regulation. While not passed, lawmakers established the WA Hemp in Food Task Force under a budget proviso that year to advise legislators on regulations and guidance for hemp in food, requesting a report by December 2022.
    • The group initially met in July 2022 and spent months finding out about comparable policies, needs of regulators, the extraction process, subgroup recommendations, and other research and considerations. However, the final report by the task force didn’t include a recommended THC limit for hemp consumables as a consensus on the amount was never reached by members.
    • The task force most recently met on March 17th.
  • During the 2023 legislative session, SB 5367, “Concerning the regulation of products containing THC,” was considered and passed by elected officials, and Governor Jay Inslee signed the measure into law on May 9th. The law restricted products with “any detectable amount” of tetrahydrocannabinol (THC) to only be sold in age-restricted cannabis retail stores.
    • Task force member and Industrial Hemp Association of Washington (IHEMPAWA) Executive Director Bonny Jo Peterson testified in opposition at every public hearing on the bill with member Dylan Summers, Lazarus Naturals Vice President of Government Affairs, who also spoke out against the bill in the Washington State House of Representatives (WA House).
  • Washington State Department of Agriculture (WSDA) Cannabis Programs Manager Trecia Ehrlich greeted members, acknowledged her role with the WSDA hemp program and cannabis laboratory standards, and said the meeting was about “giving space” for task force members, who could “also convene again before June 30th if folks want to do that” before the group’s mandate expired (audio - 3m).
    • Raising the topic of SB 5367, Ehrlich wouldn’t “name entirely what it does, or does not do to the concept of hemp in food. But what I will say is that it sounds like there is opportunity for what hemp in consumables could look like next legislative session. And so this might be a space in which you discuss that.”
    • She further observed that “it seems like if hemp in consumables is a goal…then I would encourage you folks to focus on a plan that would include age gating and whether it's like licensure or certificate…what does a business do to get to be able to sell a hemp consumable and age gate it?” Going forward, she thought “understanding the mechanism of where people buy it” and how it would be barred from youth at point of sale would be necessary, otherwise “it's going to be hard to get something through if there's not those parameters.”

• Task force members posed questions to Cannabis Programs Manager Trecia Ehrlich relating to implementation, enforcement, and standards for hemp products going forward.
  • Verda Bio CEO Jessica Tonani, asked directly, "who's setting the detectable limit and how can we help facilitate that discussion?" Ehrlich answered that the WSDA-led Cannabis Lab Accreditation Standards Program (CLASP) was the entity most likely to be given that responsibility. WSLCB staff weren’t concerned about THC detectability as the compound was expected in the items they regulated, she explained, and the impression she’d gotten from agency staff was that it was only “products that are outside the [initiative 502 market] that have to be concerned about detectability, and the LCB doesn't have anything to do with those products” (audio - 3m).
    • Ehrlich also suspected “there are folks probably both within the 502 and outside of the 502 that would like” to conduct research and development, “product design, testing in the realm of what detectability is, and how to make products.” Though CLASP members were expected to be involved with determining detectability, she was clear that the “original legislative intent of CLASP, which is to develop a standard for the Department of Ecology to be able to accredit these labs by June of 2024” remained their top priority and the group had to stick to “a pretty tight timeline to deliver that original product.” Once their standards were completed “after this summer,” as well as the filing of a CR-102 around the implementation of SB 5367, then Ehrlich felt “we would have some more space to talk about what detectability is, but it's not something that the CLASP team can do right now while maintaining their previous commitments.”
  • Next, Tonani wondered about enforcement and “if a product [was] hemp derived and does not contain THC,” would there be a “transition” around what entity assessed violations of rule. Ehrlich gave the example of a product sold at a “gas station that says ‘No THC, Zero THC.’ If a state or local enforcement officer decides, or if that is…a gas station that has a vapor or tobacco license and an LCB Enforcement officer decides, or if a local health department decides that they want to test that, and they find THC in it in whatever instrument they're using, then they could probably use that to confiscate the product…if someone were to test them and follow up” (audio - 3m).
  • Peterson inquired when WSLCB would conclude rulemaking, but Ehrlich didn’t know (audio - 1m).
    • WSLCB staff previously mentioned that rulemaking to begin implementation of SB 5367 was expected to be presented to board members on June 7th, and completed by January 31st, 2024.
  • Peterson pointed out that other states had differing standards for THC in hemp consumables, and remained hopeful for “clear and simple” rules for products sold in the state. She recognized “this probably isn't going to fly, but I would like to see if it's under 2.5 then it's not age gated,” stating it could have a ratio of cannabidiol (CBD) to THC, understood to reduce psychoactive effects. Ehrlich maintained that “age gating is gonna be the number one most important thing that you do…the legislature made it extremely clear that they don't want to see cannabinoid products in the hands of youth.” Peterson agreed she’d heard that concern from lawmakers who’d spoken about wanting to help hemp licensees when considering SB 5367, so hemp stakeholders “have to come up with something.” Others in attendance agreed but had no specific concepts of what the age restrictions should be (audio - 3m).
  • Ehrlich encouraged the group to think more broadly about how they might address age restrictions, prompting Peterson to ask what age gating policies existed for the agency representatives in attendance. Washington State Department of Health (DOH) Environmental Public Health Policy Director Joe Laxson indicated staff there could “definitely find out some more information around which programs we have connected with age gating and what could be a resource,” bringing up tobacco and vapor product regulation. Peterson felt that could help State officials “know what that budget would need to look like as well” (audio - 3m).
  • Tonani had perceived a “gray zone between hemp and high THC that [was] driving a lot of this,” and was curious if WSLCB inclusion was necessary to set up hemp consumable policies, or whether DOH and WSDA staff could be the primary regulatory actors in that process. Summers further wondered if the task force produced another recommendation, how could they ensure regulators considered their feedback (audio - 8m).
    • Tonani brought up how the Colorado task force on intoxicating hemp products had included every state agency involved in cannabis regulation, something she and other members felt their group should also do.
    • Amber Wise, Medicine Creek Analytics Science Director, commented that she was trying to decide whether “to take any CBD products in my lab anymore because it seems like a huge liability for me. If I say it's non detect[able] and…somebody else says there's a detectable amount in there…who's right?” She argued there wasn’t much clarity “in the bill language in terms of who might take responsibility” for regulations, and until it was settled “people who were making, or growing hemp or hemp-based products are…totally left in the lurch.” Wise felt WSDA and WSLCB leaders were following very different timelines and she was “at a loss for how to get some clarification about how this is going to be implemented.” 
    • Ehrlich relayed how she handled inquiries about questionable CBD products, usually from a WSLCB Enforcement Officer “at a licensed vapor shop or like a county health jurisdiction in a food store will say ‘I see this product. Is it legal? I'm pretty sure it's not; I'm gonna take it.’” Sometimes, items would be tested in a “State crime lab” or “a machine that the LCB has that detects THC,” said Ehrlich. Her impression was that the amount of confiscations was “quite low compared to the amount of products out there,” but SB 5367 expanded that policy so more CBD and hemp items “are confiscatable,” yet the law didn’t “create any…new mechanism for enforcement.” Ehrlich compared the availability of hemp consumables containing THC with other actions like when individuals “roll through stop lights” or jaywalk, which weren’t legal, but WSDA had no role in taking enforcement action on them. She offered to include WSLCB in their final meeting if task force members wanted.
    • Additionally, Ehrlich perceived “there is a group of stakeholders who wants to preserve the capacity for hemp farmers to produce hemp consumables” for sale outside the legal cannabis market, and that WSLCB staff might have viable insight on developing age gating policies. Peterson said the main benefit of having WSLCB representatives involved in their recommendation would be “so we don't have them fighting against our bill when it comes out next session.”
  • Wise talked about the questions she was getting from hemp producers about what they could do with their harvested crop. Ehrlich indicated that they could sell “raw flower” for industrial purposes, but not “sell it in a vessel that implies ingestion.” Cannabis Health and Beauty Aids (CHABA) were still allowed as well, she noted, but nothing like hemp cigarettes that suggest “consumption through the mouth.” Hemp producers could sell “to a second party and the second party then chooses to create an ingestible product,” in which case she felt “that second party [was] making a choice to process it in a way that goes against the law, but that doesn't impact the hemp farmer.” Ehrlich added that “we also have a group of farmers who's now pretty focused on manufacturing infrastructure products, like hemp wool and insulation” (audio - 2m).
  • Jim Makoso, Lucid Lab Group Director, raised the question of whether licensed cannabis processors were “able to purchase that industrial hemp, and turn it into an ingestible product and my understanding that I'm not able to do that if it's coming from a Washington hemp farmer.” Peterson thought “nothing changes in that regard,” and had the impression from WSLCB staff that hemp processors wouldn’t be allowed to sell their items in cannabis retail stores. Tonani believed hemp-derived “CBD oil” would stay allowed when used as an additive to cannabis material, speculating “that oil could go into CHABA products…or it could be sold to you, an I-502 processor” (audio - 3m).
  • Tonani spoke to the benefit of figuring out “what this means in the future as far as license permits, different product classes,” and finding an approach to regulations that reflected varying items “regulated by different, very different agencies and trying to figure out…how everybody plays together.” She suggested, “potentially, we expand the group and really explore what our options are” for hemp products in the legal market or outside it. Ehrlich agreed to contact WSLCB staff for the task force’s last meetings before June 30th “to gain more clarity” (audio - 10m).
    • Makoso shared his view after working with WSLCB in a task force capacity on the Washington State Legislative Task Force on Social Equity in Cannabis (WA SECTF) that “if we know which direction we would want to go first, and we clearly identify in which specific instances we would like to have their opinion…that would be a little bit more productive than just, say, invite them to a meeting.” He expected there would be “obvious insight” from their oversight of cannabis that could help task force members articulate their vision for hemp consumable licensure. When it came to age gating, Makoso claimed “the average in other states is 18” and they should “not over complicate that” by specifying different product types.
    • Peterson called for them to vote on a “top end with the ratio” for THC and CBD before involving WSLCB staff, but the group didn’t take up the idea.
    • As a resource, Ehrlich shared a 2015 law on vapor products which addressed policies for restrictions on the items, and advised that for agency representatives giving input on any planned legislation for 2024, staff needed to see language drafted by “late summer.” She encouraged the group to consider “do you want someone there before you're drawing it up, or do you just want them to review it and say ‘no, we can't do this; yes, we can,’ after it's written.” Wise hoped to have WSLCB insight, “so they don't oppose whatever recommendations we may end up coming up with.” Peterson presumed some officials “obviously were hurt last session” because they’d commented about their lack of involvement on the task force when developing SB 5367.
    • Tonani pointed out that different product categories for hemp were used in other states, and not all types were age restricted. She wanted to resolve whether processors “can't make products using hemp in the 502 [since] it becomes cannabis if there's any detectable THC” plus learn about WSLCB policies for verifying ages in alcohol and tobacco sales.
      • Tools to learn about hemp programs and licenses in other states include:
        • National Conference of State Legislatures - Regulating Hemp and Cannabis-Based Products
        • U.S. Agriculture Marketing Service - Hemp Public Search Tool
        • Vote Hemp - State Hemp Laws

• Members considered their next steps for making recommendations and what hemp stakeholders would be working on after the task force mandate expired.
  • Ehrlich repeated her call for members to send her the names of any WSLCB official they wanted looped in on the process, and questions they had for officials so she could email them ahead of any task force gatherings before July 1st. She was clear that more than two meetings would be hard for WSDA to schedule, though stakeholders were welcome “to meet however you please, and whenever you please.” Adding that “knowing that some of what you're probably doing is trying to figure out how to write a bill which wouldn't involve me as a government employee,” she couldn’t do much besides help coordinate their gathering (audio - 3m).
  • Dave Wyckoff, CEO of Wyckoff Farms, felt “a little bit lost” as to what the task force planned to recommend given the constraints legislators and regulators had just placed on “food and beverage products as we typically think of them.” He was uncertain “​​what are we really trying to accomplish at this point in terms of putting together some sort of proposal?” (audio - 8m)
    • Peterson commented that there was no regulatory path for hemp-based CBD consumables in the 502 market, and “I know a lot of people…were under the impression that that's what the bill did, but it did not.” Nonetheless, she was confident "a lot” of legislators were open to the concept, stating “there is some room for discussion, movement on [what WSLCB staff] think regulatory” rules for the products should look like. Wyckoff was unconvinced they could get the hemp in food and beverage items he’d envisioned to market with authorities “drawing a line in the sand on it.”
    • Tonani didn’t believe WSLCB wanted a limit of “any detectable” amount of THC, noting their request bill had allowed levels, even if “it might not have been the levels that everybody wanted on this call.” She felt if the State could classify hemp products with only trace amounts of the THC, labs could set up testing protocols for those items, and there could be a “path for sale of products that are hemp with, with some amount of THC in them, and then a path for 502” items.
    • Ehrlich hoped she “didn't come across as dismissive” when explaining that CLASP had other mandated work to complete; “we have a really big workload and commitment [for cannabis lab standards,] and we really want to commit to delivering what we said we’d deliver on time.” Legislative mandates were a top priority for CLASP staff and if the team got such a directive in the future, Ehrlich and others would help “incorporating what detectability is, or different layers of” product rules. She indicated there were always “new bills and they continue to modify the law and improve it,” and cautioned “even if you have zero THC, I really do think folks are gonna want any cannabinoids aged gated, that would be my expectation.”
  • Ehrlich said she’d follow up with WSLCB officials once she’d heard from task force members about whom they wanted to involve and look into meeting dates before encouraging stakeholders to look “outside of those two dates to do any preparatory work.” Peterson promised to share the “last incarnation” of her hemp in food legislation, alleging that several lawmakers “didn't know what they were voting on. There are still legislators that think that we can sell products up to [0].3” percent THC, while others were “very, very surprised to find out what they voted for.” She thanked Ehrlich and DOH representatives “for joining us again” (audio - 2m).
  • At time of publication, no additional WA Hemp in Food Task Force meetings had been announced.