WSLCB - Board Meeting
(September 30, 2020)

• The Board had no questions about revisions to Marijuana Quality Control proposed rules (audio - 6m) nor adoption of final rules for the Consultation and Education Program (audio - 3m).
• I offered public comment to the Board about unnecessary “barriers to entry” encountered after registering to access the agency’s Tuesday evening webinar seeking feedback from black, indigenous, and people of color (BIPOC) communities. Agency staff reserved the right to approve registrants leading to a surge of requests for access as the meeting started, and possibly unintentional exclusion of BIPOC voices. I recommended the agency drop the configurable approval gateway for their next two scheduled BIPOC engagements (audio - 4m).

Here are some observations from the Wednesday September 30th Washington State Liquor and Cannabis Board (WSLCB) Board Meeting.

My top 3 takeaways:

• The Board was presented with a supplemental CR-102 changing the cannabis Quality Control Testing and Product Requirements proposed rules and continuing a protracted development period.
  • Quality Control (QC) Testing and Product Requirements (Rulemaking Project, audio - 6m). Efforts to improve the agency’s cannabis testing rules began in August 2018, pre-dating Policy and Rules Manager Kathy Hoffman’s time with the agency.
    • The first CR-102 was approved by the Board on January 22nd.
    • Hoffman reviewed the rulemaking project’s history, building on “a comprehensive overview” of the “background and history” she provided before the initial public hearing (audio - 12m).
    • WSLCB hosted a first listen and learn forum in April 2019, where Hoffman observed an outsized presence of representatives from cannabis testing laboratories compared to other licensees and “opinions and ideas” on changes "differed greatly.” A second session in August 2019 “invite[d] ideas on phase-in and mitigation strategies.” Hoffman said this session saw more participation from cannabis licensees. Over 300 comments were collected through the project’s CR-101 phase and made accessible as a comment matrix.
    • The public hearing for the initial CR-102 was rescheduled from March 18th to April 1st before Governor Jay Inslee’s “Stay Home, Stay Healthy” proclamation on March 23rd led the agency to temporarily withdraw the rulemaking project on March 27th. The Board voted to restart the project at the CR-102 phase on May 27th.
    • Comments during the initial CR-102’s public hearing on July 8th showed continuing division over issues such as lot size and sampling practices tinged with skepticism about the integrity of accredited laboratories.
    • Less than one month later on August 4th, Policy and Rules Coordinator Casey Schaufler reported staff were “considering substantive changes” to the CR-102. On September 1st, Hoffman confirmed her intention to offer a supplemental proposal to the Board.
    • Schaufler previewed the new CR-102 and supporting materials with board members during the September 29th board caucus.
    • The agency’s QC rulemaking project was separate and distinct from the Washington State Department of Ecology’s Cannabis Science Task Force, which was charged with leading the transition of responsibility for cannabis testing lab accreditation from WSLCB to the Department while bolstering lab standards.
      • Read the CSTF’s first report on Laboratory Quality Standards for Pesticides in Cannabis Plants and Products.
  • The overall goal of the rulemaking project was “increased access to safe, thoroughly tested marijuana products that reduce the risk of harm or potential harm to all consumers.”
    • Hoffman cited the impact of COVID-19 in Washington, and felt that “assuring that all marijuana products align with stringent product quality standards supports efforts to increase consumer protection when it is most needed to align with ongoing statewide public safety and harm reduction efforts.” Public safety was part of the agency’s mission, and revised rules would support that mission as “the public benefits from safe, appropriately tested marijuana.”
    • Hoffman pointed out new comments the agency had received, as well as a revised significant legislative rule analysis.
    • She highlighted a revision to “increase lot size from five to ten pounds, and because this is a substantive change from the original proposal we’re required to submit a supplemental CR-102.” The lot size change “would not preclude licensees from continuing to draw samples from five pound lots, and indeed, we heard that several licensees wish to retain that lot size” Hoffman noted increased lot size was “something considered earlier in rule development...and early in that project ideas about what that lot size should be varied broadly.” Notably, agency staff had “looked at what our traceability system could tolerate, and this proposal reflects that.”
    • Hoffman said an updated small business economic impact statement (SBEIS) showed “if we looked at monthly costs...cost actually does not exceed the ‘minor cost’ threshold consistent with regulatory fairness act calculations. However, if we look at annual costs, it does.” For that reason, “reducing test frequency may help to mitigate those costs” even though the significant analysis and SBEIS indicate “this is largely based on individual business models and practices.”
    • Hoffman reminded everyone that WSLCB was “statutorily required to set those standards for products” even as lab accreditation was transitioning to Ecology in 2024.
    • Hoffman described the QC rulemaking project’s projected future timeline:
      • The Washington State Office of the Code Reviser (OCR) would “publish notice on October 21st.”
      • A new public hearing was “scheduled for November 18th.” 
      • Absent further revisions, Hoffman would present a CR-103 for final adoption of the rule changes “on January 6th of 2021.” 
      • Rules would take effect following a “staggered, phased-in approach” beginning on February 6th, August 1st, with full implementation achieved on February 1st, 2022.
    • Finding the presentation “thorough,” the Board voted to approve the supplemental CR-102 without questions.
• Next, the Board adopted a Consultation and Education Program for licensees.
  • Consultation and Education Program (Rulemaking Project, audio - 3m). Formerly called the Voluntary Compliance Program (VCP), the program’s creation was legislatively mandated in 2019 as part of the Enforcement reset bill, SB 5318. Section 4 of the session law appended RCW 69.50.342(3) to mandate the program while section 5, encoded as RCW 69.50.561, defined its scope. 
    • WSLCB began the project in mid-July 2019. Hoffman organized a VCP work group and hosted meetings in November 2019 and on February 24th. The work group's input was collated into notes first mentioned in mid-December 2019. Hoffman announced she’d gathered final internal feedback on February 4th.
    • A listen and learn forum scheduled for March 17th was cancelled as part of the State’s response to the coronavirus. The forum was later convened on May 28th.
    • A public hearing had been expected on July 22nd before the project’s timeline was revised on July 8th. No comments were received at the hearing on September 16th.
  • Hoffman went through a memorandum with background on the rule text, saying SB 5318 provided both “direction” for WSLCB and “an initial framework to perfect and expand existing programs for compliance education offered to marijuana licensees and their employees.” The law permitted the agency to “adopt rules on the frequency, manner, and method of providing consultative services,” Hoffman pointed out, while also maintaining the “enforcement requirements of Chapter 69.50 RCW.”
    • Hoffman said proposed rules were drafted “in consultation with several marijuana business owners, industry representatives, and others” between November 2019 and February 2020. As no written comments on the proposal were received by agency staff and no comments provided at the public hearing, Hoffman confirmed “no changes have been made to these rules since the original proposal.”
    • Hoffman went over the remaining timeline to implement the program, saying it included “both internal and external trainings for LCB staff as well as licensees.” With board approval, she planned to file the CR-103 with OCR and the rules would take effect on October 30th.
  • The Board voted to adopt the final rules and Chair Jane Rushford commended Hoffman’s “excellent work.”
• During public comment, Cannabis Observer founder Gregory Foster talked about the difficulty he and others encountered attempting to join WSLCB's first BIPOC community outreach webinar.
  • Foster last addressed the board about transparency concerns during the July 8th Board Meeting.
  • Foster told board members he’d had difficulty joining the agency’s first black, indigenous, and people of color (BIPOC) community engagement on September 29th. He suggested reconfiguring WSLCB’s planned future events “to enhance participation” (audio - 4m).
  • Foster noted that instructions on the event flyer sent on September 11th were “easily navigable” but discovered that “agency staff, the meeting host, actually had to approve the access for, I’m assuming, all the external participants.” For participants attempting to login at the event start time, this resulted in a “barrier to entry for a listening session intended to engage the community that you wanted to hear from.” Although “full participation in the webinar as a participant wasn’t allowed after the start of the session,” Foster was grateful agency staff were “eventually able to share a dial-in number” with him 45 minutes after the start of the event.
    • During the event, Washington State Commission on African American Affairs (CAAA) Commissioner Paula Sardinas drew attention to the difficulty many had in trying to join the webinar. She indicated that stakeholders were texting her as “they were not able to get in” and asked for a way “to recognize some of the folks” who had dialed into the event “to make them feel more included” (audio - 3m).
    • Later in the event, telephone callers were given an opportunity to speak by unmuting all lines at once and encouraging people to “jump in” but not speak over one another (audio - 1m). Of 52 participants, 15 testified or had questions presented including four telephone callers.
  • Foster advised that for the remaining two events WSLCB “drop that requirement that someone on the agency staff issue an approval for people to participate” since the agency retained “full control over who is given the opportunity to speak within the meeting itself.” He added that he’d shared his concerns with Director of Communications Brian Smith who’d responded that staff were looking at how “to make things go a little more smoothly next time.”
  • Foster closed out his comment by thanking the Board “for undertaking the effort to hear from the communities of color and to hear folks’ feelings about cannabis social equity in the industry.”