WA House COG - Work Session
(September 15, 2020) - Cannabis Potency Policy Considerations

[ Event Details ]

House lawmakers heard invited testimony on “Cannabis potency policy considerations” from the Washington State Liquor and Cannabis Board (WSLCB), legislative staff, and two cannabis trade groups.

  • The Washington State House Commerce and Gaming Committee (WA House COG), the primary cannabis policy committee in the House, convened a work session around tetrahydrocannabinol (THC) concentrations in the state’s legal cannabis products.
    • Legislative work sessions are convened to ground lawmakers in broader policy topics as opposed to addressing specific bills. Subject matter experts are invited to share perspectives and public comment is not permitted. Work sessions may be scheduled at any time, but the committee assembly days in the fall leading up to legislative sessions can be signals of policymaking to come.
    • WA House COG members had been interested in cannabinoid concentrations in legal products since a public hearing on January 30th for HB 2546, which proposed a cap on THC concentration. The bill’s sponsor, Representative Lauren Davis, gave passionate testimony on her concerns about “cannabis-induced psychosis” correlated to THC concentration. While HB 2546 was not advanced during the legislative session, at the hearing Davis deemed it the “beginning, not the end” of a dialogue on cannabis and the brain (audio – 7m, video).
    • Chair Strom Peterson welcomed committee members and participants before explaining the format for the virtual session (audio - 2m, video).
      • WA House COG members observed in attendance:
        • Representative Strom Peterson, Chair
        • Representative Shelley Kloba, Vice Chair
        • Representative Drew MacEwen, Ranking Member
        • Representative Kelly Chambers, Assistant Ranking Member
        • Representative Melanie Morgan
        • Representative Alex Ramel
      • Several WA House COG members did not speak during the session and may have been absent. Cannabis Observer submitted a public records request to confirm the participant list.
        • Representative Brian Blake
        • Representative Bill Jenkin
          • Jenkin ran unsuccessfully in his district’s state senate primary and will not be returning to the Legislature - though he remains a WA House COG member until January 2021.
        • Representative Steve Kirby
        • Representative Brandon Vick
        • Representative Jesse Young
  • WSLCB Enforcement Chief Justin Nordhorn led a presentation on Cannabis Potency Policy Considerations, "providing some general information about potency,” background on laws and rules, as well as WSLCB’s processes and concerns around regulating cannabinoid concentrations (audio - 18m, video):
    • WSLCB staff:
    • Nordhorn began by saying that “most of the times people are referring to the total THC level in the cannabinoid profile” when they talk about ‘potency.’ He said other cannabinoids like cannabidiol (CBD) “play a particular role” in a product’s profile, but WSLCB regulators focused on “the quantities of each of those main ingredients...THC-A, THC, CBD-A, and CBD.”
    • Nordhorn described “the acid form” found within “the raw form of the plant.” He emphasized the carboxylated molecules were “not intoxicating” and abundant THC-A was the reason eating raw plant material would not cause a psychoactive high.
    • The presentation showed the following formula used by regulators to determine total THC/CBD concentrations after testing:
    • Nordhorn conveyed cannabinoid testing was not pass/fail and shared perspective on how testing was conducted, including in other states. He claimed “there’s different dynamics that have been reported on the value” of testing for additional cannabinoids. He added there wasn’t an “across the board” testing methodology for legal cannabis states but that the state’s Cannabis Science Task Force potency workgroup was attempting to “develop that standardized methodology...to be consistent across all testing facilities” aimed at increasing “consumer confidence.”
    • Nordhorn reviewed some testing challenges, including the assertion that certificates of analysis (COAs) should only be good for a year. After that “sunset,” Nordhorn felt regulators “should really be looking at how has that potency changed for that particular product” as, similar to “other agricultural products,” there was “degradation or deterioration and it will change that molecular structure.”
      • The linked slide states “CR-102 of WAC 314-55-102 adds 1 year sunset on COAs”, a reference to the long-running WSLCB rulemaking project on Quality Control Testing and Product Requirements. A preliminary search of the currently filed CR-102 did not turn up a reference to this change, so this is likely a proposed requirement which would be spelled out in a supplemental CR-102 scheduled for introduction at the September 30th WSLCB board meeting.
    • Nordhorn told the committee “there are more complexities when you’re talking about cannabis” testing when compared to alcohol. Cannabis was tested for twice as many “Active Ingredients” and had more modes of ingestion. The interplay between THC and CBD mattered, he indicated, since the latter had an agonistic effect on the former and blocked THC receptors in the human endocannabinoid system. 
    • Nordhorn reviewed concentration levels, consumption methods, and market share for various cannabis products:
    • Regarding concentrates, Nordhorn indicated there was no cap for cannabis concentration but infused edibles had a serving size of 10 milligrams of THC with a limit of 100 milligrams, or ten servings, per package.
    • Turning to the 502 market, Nordhorn reported that sales of useable marijuana had decreased as concentrates increased but that both trends had “leveled off.” Retail sales had increased by 42% from 2019 to 2020 and Nordhorn speculated that the State may be pulling greater market share away from illicit cannabis sources due to the coronavirus pandemic.
    • Lawmakers had several questions for Nordhorn and Poolman:
      • Chambers asked about the CSTF (audio - 1m, video).
      • Ramel asked for clarification around total THC in concentrates (audio - 3m, video).
      • Peterson wanted to know more about legal cannabis labeling in other states (audio - 2m, video).
  • Washington State House Office of Program Research (WA House OPR) Counsel and longtime WA House COG staffer Peter Clodfelter briefed the committee on his State Law Comparison: Cannabis Potency Regulation. He expanded upon information Nordhorn provided while focusing on “how potency is used as a factor in cannabis regulations in states with adult-use...commercial cannabis markets.” He also spoke to “legislative proposals to limit the potency of marijuana products in these adult-use states” as well as “state laws and rules that limit the potency of medical marijuana products and some related legislative proposals in that area” (audio - 10m, video).
    • Clodfelter conveyed the 10mg THC serving size constraint on infused products in Washington was common across adult use states and medical cannabis patients were typically allowed access to items with more THC per serving. He indicated Oregon had 5mg servings up to a 50mg package, but allowed 10mg capsules.
    • Clodfelter reviewed trends in testing, labeling, and taxation of cannabinoid concentrations in other legal states, showing THC/CBD testing and labeling were very common. He observed other states “defining THC very broadly as to include all the possible THC that could be in the product.”
      • Clodfelter found that Michigan’s cannabis-infused products could be lawfully sold provided they didn’t exceed the 10mg THC limit by more than 10%.
      • Of the jurisdictions reviewed by Clodfelter, only Illinois factored THC concentration into their cannabis excise tax when retail stores began opening at the beginning of 2020.
        • 20% tax for all cannabis infused products
        • 10% tax for other cannabis products with THC content of 35% or less
        • 25% tax for other cannabis products with THC content over 35%
        • Illinois’ governor announced July 14th that the state had collected $52 million in revenue over the first six months of recreational sales, $34.7 million of which came from the excise tax. 25% of revenue collected would be “Reinvested in Communities Hit Hardest by Failed War on Drugs.”
    • While no state specified a maximum THC concentration for useable cannabis or concentrates, Clodfelter identified several attempts to legislate the subject including HB 2546 which he acknowledged "did not advance out of committee."
      • Vermont was considering legislation which would establish two caps: a 30% THC limit on usable cannabis and a 60% limit on concentrates. 
    • Various states had concentration laws and rules around medical cannabis.
      • North Dakota and Delaware had THC limits for medical cannabis patients under the ages of 19 and 18, respectively.
      • New Jersey limited medical cannabis to 10% THC, while Ohio limited medical cannabis to 35% THC for useable cannabis, and 70% THC for concentrates.
      • Arizona and Florida considered but didn’t adopt THC limits for their medical cannabis programs.
    • At the conclusion of Clodfelter’s report, Kloba inquired about Illinois’ excise tax for cannabis and that state’s medical market (audio - 1m, video).
  • Washington CannaBusiness Association (WACA) members presented Priority: Public Health and Safety in Cannabis, spotlighting existing research and potential policy impacts of further regulation of cannabinoid concentrations (audio - 5m, video):
    • WACA speakers included:
    • As he introduced the panel, Peterson asked about reducing cannabinoid concentrations in products, in particular vapor items: “what’s the additive...that fills that void?”
    • Christophersen credited I-502 for envisioning how a “safe and fully regulated marketplace” would be safer than the illicit market which remained pervasive elsewhere. 
      • She said the “vape crisis is a good example of how we as a state sort of exceed and stand out” at proactively protecting consumers from dangers of unregulated products. Christophersen highlighted a Yale School of Public Health study of vapor product use which found “Higher rates of e-cigarette and marijuana use in U.S. states did not result in more e-cigarette or vaping-related lung injuries.” She suggested the study lent credence to the idea that Washington’s legal vapor products may have “crowded out the use of these informally sourced [vapor] liquids.” Nonetheless, she felt the industry remained in its infancy and called for “more research in the cannabis space.”
    • Douglass dove deeper into research on “what we know about potency in cannabis,” a “snapshot” of the scientific community’s understanding of “cannabis, cannabis products, and human health” (audio - 4m, video).
      • A 2019 study in the medical journal The Lancet claimed that THC concentrations above 10% “modestly increased the odds of a psychotic disorder.” Douglass said that THC level would include “almost all the cannabis found” in 502 stores. He noted the study didn’t look at cannabis concentrates and was more representative of a “correlative effect and not necessarily a causative effect.”
      • Another study from researchers at Harvard Medical School in 2018 concluded that “an increased familial morbid risk for schizophrenia may be the underlying basis for schizophrenia in cannabis users and not cannabis use by itself.” Douglass conveyed speculation that cannabis use in those circumstances may be “a form of self treatment...for existing underlying symptoms.”
      • Douglass revisited the Yale research study on Vapor Associated Lung Injuries (VALI), asserting it showed “the highest per capita rates” of exposure in states “that did not have regulated cannabis systems” in contrast to “some of the lowest incidences in states that did have regulated cannabis.”
      • The final study, published in 2019 in Scientific Reports, observed “greater symptom relief for many ailments” with “high potency” useable cannabis. Douglass asserted that “in regulated cannabis states you have lower use of medications, and lower prescription rates for things like opioids, benzodiazepine, and SSRIs [selective serotonin reuptake inhibitors].”
      • In closing, Douglass explained that “myself, and a number of Washington scientists like me, voted in favor of Initiative 502 because it explicitly promised to fund cannabis research” which was hindered under cannabis prohibition. He said WACA and scientists would stand “arm in arm” to support continued research, but the current data wasn’t conclusive on whether “cannabis concentrates or high-potency marijuana cause harm. We’re just beginning to grapple with that.”
    • Goldman considered possible policy ramifications of regulation of THC concentrations (audio - 4m, video).
      • Extracted by either solvents or “heat and pressure,” cannabis concentrates were unlike alcohol, Goldman said, since "cannabis oils can't be diluted with water." Instead, they required an oil-soluble additive to “blend” - most of which had some risks when inhaled, as was discovered when vitamin E acetate became a widely used diluent in unregulated marketplaces. Statutes which encouraged dilution to lower cannabinoid concentrations would likely cause consumers to inhale more diluents.
      • Turning to HB 2546, Goldman shared his belief that the bill would have “unintended consequences” like requiring “potentially harmful” additives and encourage consumers to use more cannabis to achieve expected effects. This could be especially damaging for patients acclimated to high-THC products which minimize administration, he indicated. Goldman further warned that some consumers could consider excessive adulteration to be “contamination” of cannabis products and reason to buy from outside the 502 system.
      • Aside from studying any connection between cannabis and mental health, Goldman honestly wondered, “if science does say that we should reduce THC consumption for better mental health, how do we do that safely?”
    • Before fielding questions, Christophersen concluded that both legislators and the industry had an interest in public health, reducing Washington’s illicit cannabis market, and expanding cannabis research (audio - 1m, video).
      • Peterson asked about current labeling requirements (audio - 2m, video).
      • Kloba wanted to better understand how labeling related to consumer education (audio - 5m, video).
  • The Washington SunGrowers Industry Association (WSIA) launched the final industry presentation, The "Potency" Driven Market: A Cannabis Farmer's Perspective, offering remedies to move consumer opinion away from THC as a “proxy for quality” (audio - 10m, video):
    • WSIA representatives:
      • WSIA Executive Director Crystal Oliver
      • Jade Stefano, Puffin Farm Co-Founder and CEO, and WSIA Board Member
    • Oliver told the committee that “while THC concentration is used in state and national definitions to differentiate marijuana from hemp, it’s not the only cannabinoid present in cannabis that interacts with the endocannabinoid system and receptors.” Oliver indicated that “terpenoids such as limonene, myrcene, or pinene” had a “pharmacological effect on the brain” beyond impacting cannabis flavor in a process referred to as “the entourage effect.” Oliver said she had yet to see evidence of “linear correlation between intoxication/THC” that could ignore other factors.
    • Mentioning HB 2546’s hearing in January, Oliver dinged the research cited in the bill’s original text. While it “alleged a cause-and-effect relationship between cannabis and psychiatric illness” based on self-reported illicit cannabis use, the study did not consider factors such as actual THC concentration nor the fact that “those with psychiatric illnesses typically use all intoxicants at a greater rate than the general public.” Accordingly, she felt the study---cited with intent to legitimize HB 2546---pointing to a substance use trend in a population with mental health issues was “not really a surprising find.”
    • Oliver spoke to other studies, maintaining that no causation had been sufficiently shown while raising other concerns over taxing or limiting cannabis concentrations. She highlighted a report from Spain which “found no relationship” between cannabis and psychotic experiences once accounting for “covariables” and concluded that “the relationship established between psychotic experiences and cannabis is complex and is mediated by relevant variables.” Oliver agreed with others who called for “more research of the regulated marketplaces to better understand this,” inserting an oblique reference to the fact that many studies were dependent on surveillance of unregulated marketplaces.
    • Oliver felt the role of consumer education had been insufficiently considered to address potency concerns. She believed the construction of Washington’s legal market had encouraged consumers to value THC concentration over other quality factors. Oliver said growers in pre-legalization cannabis cultures would “verbally communicate attributes and distinguishing factors,” didn’t typically perform standardized testing, and were therefore less reliant upon THC concentration to convey value. Under the legal market, “farmers were no longer permitted to sell directly to consumers” leading buyers to rely on packaging and labeling that focused on a few cannabinoids found in a sample from “a five pound lot.”
    • Accordingly, some producers found that cannabis cultivars which had “sold well on the illicit marketplace no longer sold well on the regulated marketplace because they had a lower THC concentration.” Oliver said this led retailers to pressure producers to mark down the price of lower THC products, further motivating growers to stop producing certain cultivars entirely, a process which “negatively impacted the diversity of strains and cultivars” available in legal stores.
    • Another factor which concerned Oliver was the lack of an organic-equivalent designation from the Washington State Department of Agriculture (WSDA). Though there were various “private sector” standards, a lack of consistency had made it “challenging to educate the consumer base that these are, sort of, the organic equivalent,” she attested.
    • Oliver remained concerned that potency taxes or limits would reinforce the concept that cannabinoid concentrations were a “proxy for quality” and would incentivize widespread use of “cutting agents” with their own generally unknown health impacts. She emphasized the “lack of standardization and confidence in Washington’s labs and traceability systems” wasn’t helpful. And banning high THC concentrates would drive consumers to unregulated markets in search of desired products, motivating illicit actors to create and profit in more dangerous and unaccountable settings.
    • Oliver offered ideas to diminish consumer focus on THC concentrations:
      • Allow direct sales to consumers by cannabis producers so that “farmers can educate consumers on their growing techniques.”
      • Reform WSLCB’s testing and labeling requirements “to allow for multiple tests per harvested lot which would allow THC and CBD to be reported as a range rather than as a single number.” This would provide consumers with “a more accurate and representative number to make their buying decision on.”
      • Require WSDA to complete its organic-equivalent certification similar to California’s OCal standard.
    • Following up, Ramel asked for Oliver’s views on the relation of THC concentration to psychosis (audio - 2m, video).
  • Peterson closed out the first part of the work session by thanking participants and reminding everyone WA House COG was “in the information gathering phase” and “if and when any future legislation comes, we want to make sure that we keep these lines of communication open” (audio - 1m, video).

Information Set