WSLCB - Listen and Learn Forum - HB 2826 Implementation
(September 1, 2020)

Tuesday September 1, 2020 2:00 PM - 3:45 PM Observed
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The Washington State Liquor and Cannabis Board (WSLCB) is hosting two Listen and Learn forums to consider establishing new and amending existing sections of rule concerning marijuana definitions and marijuana vapor products. This is the first of two planned sessions. The full text of the draft conceptual rules are provided hereFor this session, we are discussing only draft conceptual rule sections 314-55-010(4) and (40) to implement House Bill 2826 pertaining to marijuana vapor products.

WSLCB Announcement (August 18, 2020)

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Number: 1-855-929-3239
Number: 1-415-655-0001
Access Code: 133 951 6990

Observations

The WSLCB announced an upcoming listen and learn forum on September 1st for the implementation of HB 2826 regarding "characterizing flavors" of concern for public health and "youth access" as well as the creation of a framework for prohibition of additives in the wake of the vapor associated lung injury health scare.

While over 100 participants signed in---including many public health and prevention representatives---few had comments to offer on new definitions for “characterizing flavor” and “terpenes”.

  • However, most of the comments offered were substantial.

Drawing over 100 attendees, nine participants commented on new definitions for ‘characterizing flavor’ and ‘terpenes’ instrumental to new WSLCB public safety and prevention authorities.

Here are some observations from the Tuesday September 1st Washington State Liquor and Cannabis Board (WSLCB) Listen and Learn Forum on the Implementation of HB 2826.

My top 3 takeaways:

  • Policy and Rules Manager Kathy Hoffman welcomed attendees, reviewed the meeting format, and described the background of the bill and rulemaking process.
  • The forum focused on two new definitions in the draft conceptual rules created by the agency: 'characterizing flavor' and 'terpenes'.
    • WAC 314-55-010(4) - Characterizing Flavor (audio - 2m). The draft language reads: “‘Characterizing flavor’ means a clearly noticeable taste, other than one of cannabis, resulting from an additive or combination of additives, including but not limited to fruit, spice, herbs, alcohol, candy, or menthol, or that is noticeable before or during consumption of the cannabis product.”
      • Elena Ozturk (audio - 1m).
      • Lukas Hunter (audio - 1m). Hunter argued that usage of the term “cannabis” in the definition was problematic “because cannabis hasn’t been defined in this section.” He recommended using “marijuana” instead as it was defined in RCW 69.50.101(y).
      • Crystal Oliver (audio - 1m). Oliver asked that the phrase “or that is noticeable” be removed from the drafted language as doing so “improves the definition.”
      • Hailey Croci (audio - 1m). Croci suggested adding the word “aroma” after “taste”.
      • Chris Masse (audio - 2m). Masse “was a little confused by this definition because the definition is framed in terms of a flavor other than cannabis, but the use of the term ‘characterizing flavor’ in the bill is in terms of the flavor of cannabis.” She noted the statute “doesn’t prohibit characterizing flavors, it actually says that it’s OK in these certain cases which is when it’s mimicking cannabis. Whereas the definition in the rule kind of seems to be on the other end of the spectrum which is when it’s not mimicking cannabis.”
        • Section 4 of the session law states: “marijuana processors may incorporate in marijuana vapor products a characterizing flavor if the characterizing flavor is derived from botanical terpenes naturally occurring in the cannabis plant, regardless of source, and if the characterizing flavor mimics the terpene profile found in a cannabis plant.”
      • Jaramie Thomas (audio - 2m). Thomas advised adding the phrase "botanical terpenes" to the definition as he believed “that’s typically what’s being used” to impart characterizing flavors.
    • WAC 314-55-010(40) - Terpenes (audio - 1m). The proposed definition states: “‘Terpenes’ means a class of compounds that imparts smell, taste, or both occurring in the cannabis plant which consist of a carbon skeleton derived from isoprene units. The word ‘terpene’ may include, but is not limited to the following:
      (a) ‘Botanical terpenes’ means constituents derived from a spice, fruit, vegetable or vegetable juice, edible yeast, herb, bark, bud, root, or leaf or similar plant material. Their significant function in cannabis products is flavoring rather than to act as a drug. This includes:
      (i) Essential oil, which is natural oil typically obtained by distillation and possessing the characteristic fragrance of the plant or other source from which it is extracted;
      (ii) Oleoresin, which is a natural or artificial mixture of essential oils and a resin;
      (iii) Distillate; or
      (iv) Any product of roasting, heating, or enzymolysis which contains terpene.
      (b) ‘Synthetic terpenes’ means any terpene that does not occur in the cannabis plant, or in other botanical sources, and is produced through chemical manipulation in a laboratory or similar facility.
      (c) ‘Terpenoids’ means the natural products and related compounds formally derived from isoprene units, or “isoprenoids,” that have the same meaning as that found in the current version of the
      International Union of Pure and Applied Chemistry (IUPAC) and as hereafter amended.”
      • David Heldreth (audio - 3m). Heldreth was concerned about the inclusion of terpenoids in the terpenes definition “as they’re separate compounds.” He recommended replacing “constituents” with “terpenes” in the “botanical terpenes" definition, saying that HB 2826 “states only botanical terpenes, no other compounds, only botanical terpenes may be used.” Heldreth wanted ‘edible yeast’ removed as “yeast is not a botanical, botanical means plant.” He argued that subsections under (a) should be prefixed to read “Terpenes derived from essential oils” or oleoresin/distillate to comport with the law which does not permit other compounds from those sources to be used. Heldreth also noted some terpenes from non-cannabis sources may be enantiomeric as compared to terpenes from cannabis sources.
        • Heldreth shared written versions of his comments in the webinar chat which Cannabis Observer was able to partially reconstruct as: “[T]he use of anything other than the exact chemical class of terpenes is now allowed and must be altered as I have done below. Terpenoids are not actually chemically terpenes. They are related, but separate groups, simply amending them to have the same meaning under Washington regulation would be at the same time a violation of Washington State law as the law does not allow additional compounds, but only terpenes, again not related compounds.
          ...is flavoring rather than to act as a drug. This includes:
          (i) Terpenes derived from essential oil, which is natural oil typically obtained by distillation and possessing the characteristic fragrance of the plant or other source from which it is extracted;
          (ii) Terpenes derived from oleoresin, which is a natural or artificial mixture of essential oils and a resin;
          (iii) Terpenes derived from Distillate; or
          (iv) Any product of roasting, heating, or enzymolysis which contains only terpenes.
          (b) “Synthetic terpenes” means any terpene that does not occur in the cannabis plant, or in other botanical sources, and is produced through chemical manipulation in a laboratory or similar facility.
          (c) “Terpenoids” means the natural products and related compounds formally derived from isoprene units, or “isoprenoids,” that have the same meaning as that found in the current version of the
          International Union of Pure and Applied Chemistry (IUPAC) and as hereafter amended."
      • Brad Douglass (audio - 1m). Douglass approved of some of the language as it “seems to mirror the definition of ‘natural flavors’ as defined in the Code of Federal Regulations (CFR)” Title 21, Chapter I, Subchapter B, Part 101.22. His suggestion was to “incorporate it by reference” in the rule definitions “instead of just taking bits and pieces” which would be the same as “defining it anew.”
      • Crystal Oliver (audio - 2m). Oliver wondered whether “vegetable juice” was redundant since “we have vegetable there.” She advised that staff strike "rather than act as a drug" from (a), and reorder the listed constituents “reflective of the more common places we’re going to be deriving those terpenes from.” Furthermore, Oliver said both "oleoresin" and "distillate" could merit their own definitions as they weren’t “botanical terpenes” on their own.
      • Chris Masse (audio - 1m). Masse reported being unable to locate "terpenoid" or "isoprenoid" in the law or WAC and advised removing them from the draft definition.
      • Lukas Hunter (audio - 3m). Hunter was in agreement with Oliver’s call to remove "rather than act as a drug" as “cannabis-derived terpenes do have an effect on the endocannabinoid system.” He added that there could be an “entourage effect with the endocannabinoid system” when botanical terpenes were included. Additionally, he called to remove "chemical manipulation" from (b) and asked for a general definition of “what a cannabis vapor product is” as it wasn’t fully outlined in the definition. Hunter promised to submit written changes to staff at a later date.
      • Shawn DeNae Wagenseller (audio - 3m). 
      • Crystal Oliver - continued (audio - 1m). Oliver said agency staff should consider a separate definition for “additives” and restructure the terms within that as needed.
  • As the session wrapped and staff looked at next steps a final comment was shared calling for a new definition for ‘youth access’.
    • As Hoffman brought the meeting to an early close, Schaufler reported a final request for comment.
    • Sarah Ross-Viles asked for a new definition to clarify “what youth access means in this context.” Hoffman welcomed her remarks while noting that a new section mentioning youth access would be part of the second listen and learn session on September 29th. Ross-Viles didn’t have a definition drafted but was amenable to sending one to Hoffman’s team. “I just think it might be critical in the implementation of this rule if the decisions the Board makes are based on considerations of youth access to have a definition of what that means,” she stated (audio - 4m).
      • In the chat box, Oliver shared the definition of ‘youth access’ already in HB 2826: “the level of interest persons under the age of twenty-one may have in a vapor product, as well as the degree to which the product is available or appealing to such persons, and the likelihood of initiation, use, or addiction by adolescents and young adults.”
    • Hoffman thanked participants and explained the next stages of the rulemaking project now that staff had “some additional comments to think about.” Her team would review what they’d heard in the session and any subsequent comments received into a “general comment matrix” for agency use (“We’ll also share that spreadsheet out with you at a date in the future,” she added). Hoffman believed it was “aspirational” that WSLCB could show stakeholders definition revisions at the next listen and learn session. Schaufler said that “additional communications” about that session would go out no later than September 15th (audio - 5m).

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