WA Senate WM - Committee Meeting
(March 2, 2020) - Summary

[ Event Details ]

The Senate fiscal committee passed HB 2826, WSLCB’s cannabis vapor products bill, as well as SB 6254, DOH’s vapor products bill which had been repeatedly brought “back to life.”

Here are some observations from the Monday March 2nd Washington State Senate Ways and Means Committee (WA Senate WM) committee meeting.

My top 2 takeaways:

  • Senate fiscal committee members had little to say and offered no amendments when passing HB 2826, the Washington State Liquor and Cannabis Board (WSLCB) request legislation “Clarifying the authority of the liquor and cannabis board to regulate marijuana vapor products.”
  • SB 6254 - “Protecting public health and safety by enhancing the regulation of vapor products” had numerous amendments offered and, following passionate debate by lawmakers, a newly engrossed version was passed by the committee in their last act before the opposite house fiscal committee cutoff.
    • SB 6254, non-cannabis vapor product legislation, was filed on behalf of the Governor’s office in collaboration with the Department of Health (DOH) in the wake of the vaping associated lung injury (VALI) health scare. Whereas HB 2826 was the corresponding post-VALI bill to more permanently encode WSLCB and DOH cannabis vapor product authorities, SB 6254 was the State’s effort to formalize emergency bans on non-THC vapor products. SB 6254 also included provisions responsive to Governor Jay Inslee’s executive order on vaping from September 2019 which emphasized the risk of addiction by youth as a legislative concern separate from VALI. WSLCB revised and extended their own emergency rules around the product bans on February 5th.
    • Staff Report
    • WA Senate WM members undertook the executive session for SB 6254 close to 10pm at the very end of their final committee meeting before the opposite house fiscal committee cutoff. Although this bill was exempted from the legislature’s usual procedural gateways, this was the last opportunity for the vapor products bill to be moved out of its house of origin fiscal committee barring additional exceptional handling.
    • The committee first considered a striking amendment on pink paper offered by Ranking Member John Braun, a minority caucus effort to redraft the bill (audio - 2m, video).
      • Braun’s introduction (audio - 2m, video).
      • Frockt argued that his own amendment incorporated the best parts of Braun’s revisions and could be amended further (audio - 1m, video).
      • Senators agreed and voted not to adopt the change (audio - <1m, video).
    • Next, the committee considered the striking amendment by Vice Chair Frockt and Senator Manka Dhingra on fireball fuchsia paper (audio - <1m, video).
      • Frockt listed the “main points” in the amendment (audio - 2m, video).
        • Banned the sale of “disposable vapor products.”
        • “Adds menthol back into the definition of flavored vapor products.”
        • “Ban the sale of online flavored vape products.”
        • Exempt “21+ stores” from a “nicotine concentrate tank size limit” that would continue to apply to “the non-21+ store context.”
        • Provides the DOH “rulemaking authority to ban flavored products marketed towards children as defined in the bill.”
          • This amendment would empower DOH to define “products with flavors or labels that are likely to be attractive to persons under twenty-one years of age due to factors including, but not limited to, links to products or advertising directed to or likely to be appealing to children or persons under twenty-one years of age.” 
          • A DOH vapor product packaging and labeling (PAL) program would complement or conflict with efforts at WSLCB and may result in rules different from the WSLCB PAL requirements seeking to deter youth access adopted at the end of 2019.
          • Though not adopted, Braun’s striking amendment included a more detailed description of what could be considered attractive to persons under 21 years of age.
    • Senator Ann Rivers’ striking amendment on orbit orange paper was intended to exempt “flavored vapor products that have been approved by the FDA from the sales restrictions of the act” but was rejected by senators (audio - 1m, video).
    • Braun chose to withdraw his own amendment on green paper regarding vapor packaging “with words or images targeting minors” after comments from Frockt (audio - <1m, video).
      • Braun’s introduction (audio - <1m, video).
      • Frockt commented that parts of Ranking Member Braun’s amendment troubled him as “there was some concern that perhaps this was something that was offered by JUUL.” He asked for removal of “paragraphs two and three” in Section 7 of the amendment. Instead, Braun withdrew his amendment altogether (audio - 1m, video).
    • Senator Bob Hasegawa’s amendment on white paper sought to remove a 37% excise tax to be levied on vapor products added by WA Senate HLTC members. Senators had conflicting views on the impact of taxation on underage buyers and opted not to adopt the measure (audio - <1m, video).
      • Hasegawa’s introduction (audio - 1m, video).
      • Dhingra opposed the amendment as “we have a vaping crisis when it comes to our teenagers, and we know it is related directly to flavored vape. One of the best deterrents we have to ensure that our children, we don’t have a whole new generation getting hooked on these products is making sure that we have a tax on this” (audio - <1m, video).
      • Braun supported Dhingra’s comments but protested, “let’s be honest with ourselves: our children aren’t buying this in places they’re paying tax. The tax is not going to affect them at all. They’re either buying it online---in sites that won’t be blocked by this bill by the way---or they’re buying it out of state or on reservations where they’re not paying the tax” (audio - 1m, video).
      • Amendment vote (audio - 1m, video).
    • Mullet’s striking amendment on terrestrial teal paper instead cut the new excise tax on vapor products in half. Most of the committee supported the move which directed funds to the state’s foundational public health services account (audio - <1m, video).
      • While generally opposed to taxation, Senate Republican Leader Mullet said he was settling for reducing the vapor excise tax from 37% to 18.5% (audio - <1m, video)
        • According to the Department of Revenue (DOR) fiscal note this would cut the projected revenue from the bill’s tax from $15,333,000 in the next biennium to $7,666,500.
      • The amendment was adopted with staff reporting 16 yes and 7 no votes (audio - 1m, video).
    • Hasegawa’s striking amendment on orchid paper would have removed limits on “containers and tank sizes” for vape liquids but didn’t draw the votes necessary to pass (audio - 1m, video).
    • Hasegawa’s amendment on re-entry red paper revolved around what businesses, if any, would be allowed to have vapor product tastings on their premises. Comparisons to cannabis sampling elicited laughter from some members before the committee voted to permit the practice by retail vapor licensees (audio - <1m, video).
      • In his introduction, Hasegawa said that prospective customers at vape stores would “want to see what you’re getting” and that it “doesn’t make sense” that the Senate would not allow sampling for adult customers in 21+ stores (audio - <1m, video).
      • Senator Mark Schoesler was grateful for the amendment as “we’ve allowed for sampling of liquor, wine, microbrews” leading him to ask “why would this 21 and over product be any different?” (audio - 1m, video)
      • Frockt asked Attanasio about the effect of the amendment. He responded that tastings would “have to be in a licensed premises that’s restricted to people 21 years or older” (audio - 1m, video).
      • Dhingra asked rhetorically whether the state permitted “tastings...for marijuana products and do they allow smoking of cigarettes before they buy them?” (audio - <1m, video).
      • Hasegawa asked for clarification on “what is actually in the bill” with staff replying that the Fireball Fuchsia amendment was “built upon the [substitute bill]” that came out of HLTC which had “included the tasting provision that disallowed tastings.” Frockt reiterated that the amendment would maintain current law permitting vapor product sampling “only in 21+ stores” (audio - 1m, video).
      • The re-entry red amendment was adopted by a voice vote (audio - <1m, video).
    • Hasegawa’s next striking amendment on blue paper attempted to remove language from the bill “prohibiting an individual from giving a vapor product away for free.” A majority of senators decided against giving their support to the change (audio - <1m, video).
    • Frockt’s last amendment on tan paper pertained to local government power to regulate vapor product use in public to mitigate concerns about the State’s preemption of local bans of vapor businesses. Committee members agreed and voted to adopt the language (audio - <1m, video).
      • Billig explained the amendment intended to “thread the needle on those who are on the fence on this bill.” He said it would allow local governments to “regulate, wherever they want, the use of vapes” while remaining preempted from regulating “the sale of vape so they can’t make new sale provisions for their local municipality” (audio - 1m, video).
      • The tan amendment was adopted by a voice vote (audio - <1m, video).
    • The last amendment from Hasegawa on grey paper would have stopped local governments from “imposing vapor product regulations” but was withdrawn by the Senator (audio - <1m, video).
    • Members then undertook a motion to pass a second engrossed version of SB 6254 as amended (audio - <1m, video).
      • Hasegawa found it an “interesting social observation to see the tsunami wave of panic around vaping which I view as a legitimate tool to getting away from smoking.” After the Tobacco 21 campaign to raise the age for purchasing tobacco and vapor products the previous year, Hasegawa expressed surprise that “we’re pressing forward with even more things that go after the over 21s in order to get to the under 21s, to me doesn’t make any sense.” Hasegawa said his amendments had left “over half the bill intact” but that “it was a decision of the majority of this body to just continue to go after folk who are trying to look at a life saving option.” He noted the impacts of the emergency bans on small businesses by describing a vapor store owner who had been prohibited “from selling his wares” but couldn’t end their property lease. He asked his colleagues for a no vote on HB 6254 (audio - 2m, video).
      • Becker addressed Hasegawa, lauding him for “standing up for what you believe in in this” bill, adding that her husband had tried to “quit using the [nicotine] patch” but continued smoking. She said her husband had talked with Hasegawa about smoking who “gave him a way to look at it a little bit differently” (audio - 1m, video).
      • Braun offered his opposition to the bill while appreciative of the “effort...to get after what I think is a real crisis in our state” of youth vapor use. “But it’s my belief that nothing in this bill will do that,” he told the committee, though allowing that “the banning of the disposable vapor products, I think, might help do that.” Otherwise, Braun found the tax rate unlikely to register with underage buyers as the products could already be found in “any high school in our state or probably most junior high schools, you, within a few minutes...you can find a student selling this equipment and this product to their classmates.” Instead, he argued that HB 6254 would “make it much harder on adults to access this product.” Saying he knew many “blue collar” smokers, Braun said that “vaping is one area where we have had some success” with tobacco cessation. “And that is an absolute benefit to them personally and to our society more largely,” he said (audio - 3m, video).
      • The bill was passed by a voice vote with Rolfes stating that the bill would be referred to WA Senate RULE where it would be considered for placement on the Senate floor calendar (audio - 1m, video).
      • At publication time, the bill remained on the WA Senate Rule white sheet awaiting a pull to the Senate floor. This bill received special handling throughout its lifecycle, and would require even more to achieve passage by the Senate, then the House, and then the concurrence of the full legislature before the close of the regular session on Thursday March 12th.