The Week Ahead
(May 10, 2021)

WSLCB - THC - CR-101 (May 12, 2021) - Memorandum - Background

On Wednesday, an important rulemaking project would be started at WSLCB to determine the fate of delta-8-THC in the regulated marketplace - and potentially much more.

Here’s a look at cannabis-related policymaking events on the calendar in the week ahead.

Monday May 10th

At publication time, no cannabis-related policymaking events scheduled

Tuesday May 11th

On Tuesday at 10am PT, the weekly WSLCB Board Caucus was scheduled to recur.

On Tuesday at 1pm PT, the Washington State Legislative Task Force on Social Equity in Cannabis Technical Assistance and Mentorship Work Group (WA SECTF - Work Group - TA and Mentorship) was scheduled to convene for the first time.

Wednesday May 12th

On Wednesday at 10am PT, the bi-weekly WSLCB Board Meeting was scheduled to recur.

  • [ Event Details ]
  • During Wednesday’s board meeting, Policy and Rules Manager Kathy Hoffman was scheduled to ask for the Board’s approval to introduce a new rulemaking project to address the appearance of delta-8-THC in the regulated marketplace [ Rulemaking Project ].
  • Momentum to undertake rulemaking on this subject specifically---and psychoactive cannabinoids beyond delta-9-THC in general---had been building for some time.
    • Public records mention agency staff developed an internal policy on the subject in 2018 in relation to the appearance of marijuana infused edible (MIE) packaging and labeling citing the compound. At publication time, Cannabis Observer had not sought out those records, but it can be presumed that this policy determination was in effect until more recently.
    • The more recent wave of delta-8-THC products, driven by struggling hemp markets and cheap CBD isolate, was noticed by agency staff in early 2020 following outreach by licensees and accredited labs. WSLCB Chemist Nicholas Poolman and Cannabis Examiners Manager Kendra Hodgson pursued agency attention by circulating a description and draft policy analysis of the practice of converting CBD isolate into delta-8 and delta-9-THC.
    • Policy and Rules Manager Kathy Hoffman was one of the targets for Poolman and Hodgson’s outreach, and she took up the issue in the fall of 2020 in relation to the new agency interpretive and policy statement program she had been building. Hoffman first publicly shared her interest in the subject during a November webinar facilitated by the Washington Health Care Authority (WA HCA) for a public health and prevention audience.
    • A draft policy statement was circulated in February 2020 which led to feedback indicating the practice of converting CBD could also produce other THC compounds. On April 28th, WSLCB staff formally published a policy statement on “Tetrahydrocannabinol (THC) Compounds Other than Delta-9.”
  • The framing of the new rulemaking project is broader than regulation of THC compounds within the 502 marketplace.
    • The CR-101 states the agency intends to develop a new rule section on “Marijuana additives, solvents, ingredients, or compounds” and cites RCW 69.50.342(1)(m) as the basis for their authority to do so. That statute, added by the Legislature in the wake of the vapor associated lung injuries (VALI) health scare as part of HB 2826, states: “The prohibition of any type of device used in conjunction with a marijuana vapor product and the prohibition of the use of any type of additive, solvent, ingredient, or compound in the production and processing of marijuana products, including marijuana vapor products, when the board determines, following consultation with the department of health or any other authority the board deems appropriate, that the device, additive, solvent, ingredient, or compound may pose a risk to public health or youth access.” While the immediate concern may be the compound delta-8-THC, agency staff appear interested in developing a larger regulatory framework in anticipation of considering other cannabinoids, terpenes, “additives, solvents, ingredients, or compounds.”
    • The CR-101 and memorandum also state, “Currently, there are no mandatory testing standards for these compounds, and no potency or concentration limits have been established in statute or regulation concerning these compounds in Washington State.” WAC 314-55-102 defines requirements for marijuana product potency analysis and permitted concentrations of residual solvents, but the terms “potency” and “concentration limits” are also deployed by public health officials intent on establishing dosage limits on cannabis. While this year’s iteration of the potency bill, HB 1463, was not recommended out of its initial policy committee, WA HCA was still awarded $500K by the Legislature in a budget proviso “to develop policy solutions in response to the public health challenges of high tetrahydrocannabinol potency cannabis.” At publication time, the biennium operating budget bill, SB 5092, had not been signed by the Governor.
  • The pursuit and emergence of delta-8-THC as a psychoactive compound seemingly accessible under the reassurances afforded by the designation of ‘hemp’ as a federally descheduled agricultural commodity is the newest salvo against the legal fictions crafted to create and evade federal prohibition of cannabis. The arbitrary designation of ‘hemp’ as cannabis containing less than 0.3% of delta-9-THC in an attempt to cordon off the alleged dangers of psychoactivity could not be more poignantly proven asinine. Thankfully, stakeholders will now have an opportunity to dispense with some of the legal parsing at issue outside the 502 marketplace and focus more clearly on whether and to what extent cannabis regulators should contemplate the introduction of cannabinoids created by other means into regulated products, and the safeguards needed by the population if we do so. In my opinion, there is no more fundamentally important rulemaking project we’ve observed since the formation of Cannabis Observer in early 2018.

On Wednesday at 1:30pm PT, the three-member Board and agency leadership were scheduled to convene their monthly WSLCB Executive Management Team (EMT) meeting.

Thursday May 13th

On Thursday at 2:30pm PT, the WSLCB Listen and Learn Forum on the Criminal History rulemaking project was scheduled to occur.

Friday May 14th

At publication time, no cannabis-related policymaking events scheduled

2021 Legislative Session

Legislators declared the end of the regular session on Sunday April 25th.

Cannabis-related Laws (2)

  • SB 5372 - "Concerning a hemp processor registration process."
    • Sponsors (6): Stanford, Warnick, Conway, Hasegawa, Saldaña, J. Wilson
    • Last Step: signed by WA Governor on Friday April 16th
    • Effective Date: Sunday July 25th, 90 days after adjournment of regular session
  • HB 1443 - "Concerning social equity within the cannabis industry."
    • Sponsors (13): Morgan, Wicks, Simmons, Berry, J. Johnson, Ramel, Kloba, Ryu, Peterson, Ormsby, Ortiz-Self, Harris-Talley, Macri
    • Last Step: signed by WA Governor on Monday May 3rd
    • Effective Date: Sunday July 25th, 90 days after adjournment of regular session

Cannabis-related Bills - Delivered to Governor (3)

  • SB 5092 - "Making 2021-2023 fiscal biennium operating appropriations."
    • Sponsors (3): Rolfes, L. Wilson, C. Wilson
    • Last Step: delivered to WA Governor on Monday April 26th
    • Next Step: bill action by WA Governor
  • SB 5361 - “Concerning the resentencing of persons convicted of drug offenses.”
    • Sponsors (3): McCune, Warnick, J. Wilson
    • Last Step: delivered to WA Governor on Monday April 26th
    • Next Step: bill action by WA Governor
  • SB 5476 - “Responding to the State v. Blake decision by addressing justice system responses and behavioral health prevention, treatment, and related services.”
    • Sponsors (11): Dhingra, Hasegawa, Hunt, Kuderer, Lovelett, Nguyen, Pedersen, Rivers, Robinson, Saldaña, Wellman
    • Last Step: delivered to WA Governor on Monday April 26th
    • Next Step: bill action by WA Governor