WA Senate AWNP - Committee Meeting
(February 1, 2022) - SB 5951 - Public Hearing

SB 5951 - The Truth About CBD Products
[ Event Details ]

A bill requiring accuracy in CBD labeling was welcomed by hemp stakeholders, but dissent centered on definitions cribbed from another bill and whether the legislation was necessary.

Here are some observations from the Tuesday February 1st Washington State Senate Agriculture, Water, Natural Resources, and Parks Committee (WA Senate AWNP) Committee Meeting.

My top 4 takeaways:

  • Five people signaled their support for the legislation, including four speakers who praised the bill’s potential impact for consumers and the proposed differentiation of cannabinoid classes.
    • Senator Bob Hasegawa acknowledged research and “regulations [were] being established still,” but offered SB 5951 as “a comprehensive stop gap until those regulations are finalized." He mentioned other legislation around cannabinoid regulation like SB 5767—which he cosponsored—would help “define what those regulations should be.” Until legislation settling cannabinoid regulation was in statute and rule, Hasegawa suggested the state “needed a stop gap from a consumer protection perspective because there [have] actually been [CBD] products being sold…that don’t even have CBD in them at all.” Addressing the definitions in the legislation, he admitted, “other people are way more qualified than me to figure [it] out," clarifying he didn’t draft the wording himself and remained receptive to “whatever makes sense” (audio - 2m, video). 
      • Chair Kevin Van De Wege noticed that representatives of substance use prevention groups had signed in against the measure but weren’t testifying, and wondered why there was opposition from this stakeholder group. Hasegawa demurred, “it must be a misperception, they can speak for themselves” (audio - 1m, video). 
    • Bonny Jo Peterson, Industrial Hemp Association of Washington Executive Director (audio - 2m, video) 
    • Patrick Hyland, Nextraction, Inc. President (audio - 2m, video) 
      • Hyland stated that his company had policies and practices “in place to ensure that our safety and labeling are accurate and comply with federal dietary supplements and cosmetics requirements” for the crop. He supported the bill out of a wish to see similar practices “standardized” across the sector.
      • Hyland cited research from Oregon State University (OSU) and the University of Chicago on “class B cannabinoids" and the coronavirus as having “increased interest in class B cannabinoids.” He thought those compounds needed to be clearly classified so there could be “transparent labeling such as that proposed” in SB 5951.
      • Hyland also wanted to ensure sales of the products beyond legal cannabis retailers, who could only sell CBD items with more than 0.3% THC by weight, remained permitted. He predicted that federal authorities would “at some point in the future develop regulations for cannabinoid extraction and the handling and distribution of hemp-derived products.” Hyland felt the more state law “aligned with current federal requirements…the less future rewriting of legislation and state regulations will be required, and [the] less convoluted the regulatory landscape will be.”
    • Dylan Summers, Lazarus Naturals (audio - 1m, video) 
      • Summers viewed the intent of the bill as “a necessary step forward for protecting consumers and to ensure diligent, accurate, and safe manufacturing and marketing of non-impairing hemp-derived cannabinoid products." He supported the distinction between class A and B cannabinoids in the bill “in principle” as a “reasonable and necessary tool for allowing authorities a mechanism…to effectively restrict impairing cannabinoids.”
    • John Hunt, 405 Labs LLC Co-Founder (audio - 1m, video) 
    • Herb Krohn, SMART Transportation Division/United Transportation Union signed in supporting the bill but not testifying.
  • One person spoke and 12 others signed in opposition to the measure, while staff from two state agencies testified as ‘other’ hoping to see amendments if the bill were to be advanced.
    • Kelly McLain, WSDA Policy Advisor to the Director and Legislative Liaison (audio - 1m, video)
      • Testifying as ‘other,’ McLain informed the committee that she saw chances to “further refine this issue to address concerns that have been raised about products available to the general public.” She said SB 5951 emerged after “conversations with legislators and stakeholders about the lack of regulation and understanding of actual content of CBD in things that are marketed as containing it.” McLain commented that, at the moment, “there is no way of knowing whether or not a product actually contains cannabinoids unless truth in labeling occurs.” However, other legislation and “proposals for interim work…would address both consumer protection and human safety issues regarding CBD in the general marketplace.” She added that she was happy to work on drafting amendments with Hasegawa, or SB 5767 sponsor and WA Senate AWNP member Senator Derek Stanford.
    • Joy Beckerman, Hemp Ace International Founder, U.S. Hemp Roundtable Director, U.S. Hemp Authority Technical Committee Member, and Elixinol Regulatory Officer and Industry Liaison (audio - 6m, video)
      • Complimentary of the “consumer protection spirit in which this bill is written,” Beckerman nonetheless opposed SB 5951, saying it reminded her of the analogy of “the little Dutch boy in that, respectfully, the state has failed miserably…in protecting consumers.” She claimed there was a “moral hazard by refusing to lawfully allow the marketing of these products as dietary supplements in food, while in practice fully allowing that.” Beckerman said that creation of a “second law…to give consumers, with appropriate funding, the ability to bring a cause of action against a distributor under the state consumer protection act” for inaccurate or misleading labeling could “make the little Dutch boy feel better but it’s not addressing the massive water on the other side of that dam.”
      • Beckerman remarked that RCW 19.86.020 already outlawed “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce,” and that several federal laws “would require this truth in labeling.” This meant consumers could initiate federal litigation “under a couple of different federal acts” for any “public harm and public safety label violations.”
      • According to Beckerman, the proposed definitions were “not only wholly unnecessary," but "what’s worse is that these definitions do not have a basis in science." Appreciative that research on cannabinoids was always revealing new things, she confirmed her perspective included “what all the states, and the nation, and different countries, and different world leaders are coming up with.” Beckerman said it was “dangerous for a state…to take these definitions without really understanding the basis of them" and further found they “appear to be dovetailing" with other cannabinoid regulation bills.
      • Stating that “hemp and all of its cannabinoids and isomers are now federally legal,” she noted there was an “open rulemaking comment period with” the U.S. Food and Drug Administration (FDA), but insisted “regardless of that arguable legal status, if you are marketing your hemp extract products in the United State of America as either a dietary supplement, food, cosmetic, or over-the-counter drugs, you are absolutely beholden to, and governed by, the code of federal regulations,” making SB 5951 unnecessary.
    • Chris Thompson, WSLCB Director of Legislative Affairs (audio - 3m, video) 
      • Speaking as ‘other’ on the legislation, Thompson said he "certainly agree[d]" that CBD products should be accurately labeled but had issues with “other aspects of this bill." Specifically, he said WSLCB officials found it to be “inconsistent with" SB 5547, the WSLCB request bill on cannabinoid regulation, legislation he said was “urgently needed to bring unregulated and intoxicating products, synthetically derived from hemp, effective regulation” by the agency. Thompson mentioned that leaving these items unregulated was “what many have described as an ‘existential threat’” to the legal cannabis industry.
      • Thompson conveyed that the SB 5951 definition for CBD products was “directly in conflict with” SB 5547, and that class A cannabinoids “include many of the unregulated THC and novel cannabinoid products that have raised public safety concerns.” He asserted SB 5951 wouldn’t bar sales of intoxicating cannabinoids so long as the CBD content was accurately labeled “and the product doesn’t contain more delta-9-THC than 0.3% on a dry weight basis.” Thompson felt the legislation would “undermine” efforts by agency staff to have products with “intoxicating cannabinoids fall under the regulation of the LCB, and that such products” should only be sold by licensed cannabis retailers. He advised the removal of section 3 of the bill, and references “to class A and B cannabinoids” in section 1. 
      • Stanford raised a pivotal criticism of SB 5547—that it didn’t define what specifically constituted an “impairing cannabinoid”---worrying that “if we leave open the definition, then how are we going to effectively regulate" cannabis products “that are impairing or intoxicating?” Not wanting to see the items sold “without regulation…as many of them currently are,” he asked Thompson, “how do we define it in a way that we know what it is that we’re going to be regulating?” (audio - 4m, video)
        • Thompson said impairing hadn’t been defined in SB 5547 “because we anticipated doing so in rulemaking,” adding that staff believed cannabinoid “regulations and definitions of impairing substances should be over in [RCW] Title 69.50, not in Title 15.”
        • He offered the example of hexahydrocannabinol (HHC), which he claimed occurred in hemp “at low levels” and was “basically THC hydrogenated.” Thompson stated that HHC was “reported to be more intoxicating than delta-8 and maybe a little less than delta-9” and its chemical structure “wouldn’t fall under the definition of a class A cannabinoid even though it is, apparently, quite demonstrably intoxicating.” He suggested this “complexity” was why WSLCB staff wanted “flexibility to respond” around determining which cannabinoids were impairing through rulemaking, “whereas…that’s not really available when it’s all fixed in statute.”
        • Stanford appreciated Thompson’s perspective, but suggested the agency proposal “could take an extremely long period of time” to implement (“as we’ve seen in other rulemaking efforts at the LCB”) and that the more flexible option would be to have “the legislature be able to come back and rewrite things.”
    • Signed in opposed but not testifying (12):
  • An executive session for the bill was scheduled for Thursday February 3rd, just before the first legislative cutoff deadline, to consider a proposed substitute from Senator Derek Stanford that would deeply edit the legislation.
    • If the proposed substitute were adopted, the revised bill would continue to prohibit sale of CBD products “unless the product contains within 33 percent of the amount of CBD claimed on the label.” Rather than modify the definition of ‘CBD product’, the proposed substitute retained the existing statutory definition and all new definitions were dropped.

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