WSLCB - Board Caucus
(October 6, 2020) - Summary

We review a history of WSLCB’s specification of pesticide action levels as the Board denied another petition for change from the Washington SunGrowers Industry Association (WSIA).

Here are some observations from the Tuesday October 6th Washington State Liquor and Cannabis Board (WSLCB) Board Caucus.

My top 3 takeaways:

• Pesticide action levels were the subject of a rulemaking petition considered by the Board from the Washington SunGrowers Industry Association (WSIA); the history of how those levels were defined by the WSLCB traces through 502 accompanied by WSIA’s lobbying for change.
  • In July 2013, the initial draft of WAC 314-55-084(2) permitted “Other materials to be listed or registered by WSDA under chapter 15.58 RCW as allowed for use in the production, processing, and handling of cannabis. Pesticides must be used consistent with the label requirements.” That chapter underwent additional proposals and revisions before May 2016 when pesticide action levels were originally filed by WSLCB and set in rule.
  • In August 2016, representatives of the Washington State Department of Health (DOH) and the Washington State Department of Agriculture (WSDA) shared a formal recommendation on pesticide quality assurance (QA) with the WSLCB. WSLCB’s peer departments broadly argued against replicating limits from the Oregon Health Authority (OHA)’s cannabis and pesticide policies, calling OHA’s action levels “not low enough to serve as an effective screen for unauthorized pesticide use.”
  • In April 2018, staff emails between WSDA, DOH, WSLCB, and former Washington SunGrowers Industry Association (WSIA) Executive Director Preston Peck described pesticide research and regulation in California and Oregon, with an emphasis on pyrethrins, an ingredient in many pesticides. At that time, WSDA Registration and Licensing Services Policy Assistant Erik Johansen created and shared a Comparison of pesticide action levels for marijuana spreadsheet.
  • In August 2018, WSLCB began a new rulemaking project on Cannabis Quality Assurance Testing and Products Requirements, discussing it at greater length during a later Executive Management Team (EMT) meeting (audio - 23m). Board Member Russ Hauge remarked that “the LCB has not ignored the pesticide issue, but approached it in a way that we thought was more cost effective by saying we’re not going to require testing, but the only pesticides you can use are pesticides we’re pretty sure are gonna be safe.”
    • At publication time, this rulemaking project remained active.
  • In January 2019, WSIA Board President and Founder Jeremy Moberg spoke about pyrethrins during the Cannabis Advisory Council (CAC) meeting.
  • In April 2019 agency leadership reviewed the topic during an EMT ahead of the QA rulemaking project’s first listen and learn forum.
  • In August 2019, WSLCB received an issue brief from WSIA which recommended the agency “strike the action levels for pyrethrin and piperonyl butoxide (PBO)” from state pesticide rules. WSIA Executive Director Crystal Oliver discussed the brief and pesticides later that month during the second listen and learn forum on the QA rulemaking project (audio – 3m).
  • In December 2019, WSIA provided final recommendations on QA testing to the agency which included the assertion that Current Action Levels for Allowed Pesticides Are Arbitrarily Low. That month, WSIA formally petitioned WSLCB for pyrethrin and PBO rule changes.
  • On February 11th, Policy and Rules Manager Kathy Hoffman presented WSIA’s petition for rulemaking filed in December along with a background on pesticide rule development. At that time, Hoffman said “further research is required to assess how these pesticides, including pyrethrin and PBOs, affect the human body” when pyrolyzed. The Board voted to deny the petition.
  • On July 8th during the first public hearing for the renamed Quality Control (QC) Testing and Product Requirements rulemaking project, Oliver said “pesticide testing should focus on random sampling of usable marijuana and other material at the farm level, similar to other agricultural testing methods” (audio - 1m).
  • On September 30th, WSLCB filed a supplemental CR-102 on the QC rulemaking project. At publication time, the second public hearing for the new proposed rules was set for November 18th.

• WSIA’s newest petition asked WSLCB to undertake rulemaking to change pesticide action levels, but the Board again denied the request.
  • Policy and Rules Coordinator Casey Schaufler presented WSIA’s petition, submitted on August 12th “from Crystal Oliver on behalf” of WSIA, to “amend WAC 314-55-108 regarding pesticide action levels” (audio - 7m).
  • Schaufler framed the petition as three requests:
    • “Increasing pesticide action levels, specifically for pyrethrin and [PBO],”
    • “A general increase above 0.1 parts per million (ppm) for all other pesticides not specifically listed under WAC 314-55-108(3),”
    • “Whether rulemaking is necessary to WAC 314-55-108 to avoid a perceived conflict with proposed rules for quality assurance and quality testing filed on May 27, 2020.”
  • Regarding raising pesticide action levels for pyrethrin and PBO, Schaufler noted WSIA’s “similar rule petition” from December 2019 and subsequent denial in February. He explained the previous petition attempted to remove the two pesticides entirely from WAC 314-55-108. Schaufler claimed the new petition didn’t offer “new or updated evidence-based empirical evidence establishing that increased action levels for pyrethrins and PBOs do not harm or elevate the risk of harm to humans in the production of marijuana. This was a primary reason for the denial of the previous petition.” He stated that “no new action level limit is proposed, nor is evidence presented that an elevated action level limit would not harm or increase the risk of harm.”
  • Schaufler felt the absence of a suggested action level and supporting evidence was also a sticking point for a general increase in pesticide action levels for other pesticides not listed. He thought the intent of current rules limiting unlisted pesticides to 0.1 ppm “unless otherwise indicated” was to minimize potential harms.
  • On the final point of “the perceived conflict in current and proposed rules,” Schaufler said that WAC 314-55-108(7) stated “no remediated harvest, lots or batches may be sold or transported until the completion and successful passage of quality assurance testing as required in this section and WAC 314-55-102.” He explained that if “the proposed quality assurance and quality testing rules are adopted, pesticide action level failures will be prohibited from remediation. This may render WAC 314-55-108(7) as unnecessary or superfluous, but these rules would not be in conflict as asserted." According to Schaufler, until rule changes were finalized, petitioning for change on these grounds was “premature.”
  • Schaufler advised denying the petition.
    • Board Member Ollie Garrett said she’d asked for and received supplemental information from Schaufler and “after receiving that information I’m okay.”
    • Hauge commented that Schaufler had also “explained things thoroughly” ahead of the caucus and was assured that the agency’s “current action standards are not out of line with those enforced by other government agencies.”
  • The Board voted to deny the petition.
    • At the outset of the meeting, Board Chair Jane Rushford bowed out of participation, commenting that “the service call here at my home is very noisy” before handing off leadership of the caucus to Hauge (audio - 1m). She did not offer comment nor vote on the petition.

• The Board didn’t really discuss the agency’s first two black, indigenous, and people of color (BIPOC) community outreach events, but promised a thorough review would be organized in the future.
  • Hauge asked about citizen response at the event, something he’d voiced curiosity about on September 29th (audio - 2m).
  • Garrett acknowledged that the agency had hosted two BIPOC engagements facilitated by Caprice Hollins of Cultures Connecting and a third event was scheduled for October 12th. She’d observed "over 50 people at each one," though some were “repeats.” Garrett said there was “some interesting conversation going on...and taking all of the things that have been brought to our attention and consideration.”
  • Hauge persisted, asking for "any highlights” Garrett could share, but she suggested waiting until all the events were completed. She said, “a lot of it is repeat but there’s some new things that come up at each meeting” and encouraged Hauge to review the event’s recordings.
    • On September 29th, Rushford said she intended to schedule a “mid-October” EMT meeting “devoted primarily to updates on the social equity experience and outcomes.”
    • See Cannabis Observer’s coverage of the first two BIPOC engagements.

Information Set