WSLCB - Focus Group - SB 5367 Implementation
(April 26, 2024) - QA/QC Testing and Cannabinoid Additives

Efforts to draft improved cannabis testing and additive rules drew skepticism and questions from attendees worried about testing standards, synthetic cannabinoids, enforcement, and more.

Here are some observations from the Friday April 26th Washington State Liquor and Cannabis Board (WSLCB) focus group on the SB 5367 Implementation rulemaking project.

My top 5 takeaways:

• Tetrahydrocannabinol (THC) legislation SB 5367 had several focus groups convened starting at the end of 2023 with the goal of improving rule changes drafted by Policy and Rules staff (audio - 5m, Rulemaking Project).
  • The project was opened in June 2023 and hadn’t been expected to be completed in 2023. Policy and Rules Manager Cassidy West had led eight focus groups on SB 5367 implementation, three in December 2023, two in March, five in April—including the preceding group on April 23rd—with a final focus group scheduled for Thursday May 2nd.
  • West forecast a CR-102 with proposed changes in June, a full year after the project was begun. She commented, “with regards to changes to” WAC 314-55-102 and WAC 314-55-109, the draft modifications “incorporate the new definitions or amended definitions of ‘cannabis,’ ‘cannabis products’ and ‘THC concentration’ that were the result of [SB 5367], as well as amendments to RCW 69.50.326, which is related to the use of additives to enhance…CBD concentration of authorized products.” She said the project's scope was narrowly focused on “changes that are necessary and relevant to be able to implement the statutory provisions that resulted from the bill.”
  • West said staff intentions for the focus groups were to “get your feedback, nothing that we're providing today is final,” and changes could be added to the CR-102. Once rule changes were proposed and accepted for filing by the board, “rules will become officially proposed. At that point, you'll also have a formal comment period where people can submit written comments, so you'll have another chance to weigh in,” she said.
  • Explaining the May 2nd focus group would be the final opportunity “to review all of the changes to all of the sections that we've discussed during…these workshops” and accept public comment, West said written comments would be accepted until May 15th. This would keep the CR-102 on track for June, she concluded.

• Staff went over draft revisions to WAC 314-55-102 (Quality assurance and quality control) leading to comments on definitions, failed test samples, and delta-8-THC.
  • The draft rule text was published less than an hour before the start of the event.
  • West said most of the alterations were in subsection (3), with technical changes such as “replacing ‘potency testing’ with ‘cannabinoid concentration analysis,’ ensuring that…language that would mandate that labs have to do something [was] tweaked a little bit since we're no longer…responsible for creating rules for lab standards,” as the Washington State Department of Agriculture (WSDA) was taking on that responsibility (audio - 13m).
    • Subsection (3)(a) on “cannabinoid concentration analysis” set up the basics on what was required for cannabis licensees insofar as using accredited testing labs “and report[ing] the test results to the board” and the Cannabis Central Reporting System (CCRS).
    • Labs would continue to be required to test samples for cannabidiol (CBD) and cannabidiolic acid (CBDA), along with THC and tetrahydrocannabinolic acid (THCA), West told the group. Additionally, she said “any tetrahydrocannabinol oils as defined in RCW 69.50.204 that will be marketed or advertised as part of the product or displayed elsewhere,” and any “THC compound must be individually identified.”
    • Turning to “measuring or reporting cannabinoid concentrations,” West said the labs could use different analytical methods or equipment to demonstrate “an established limit of quantitation---LOQ---of 0.01%, which is 0.1 milligrams (mg) per gram.” Licensees had to have samples tested by “labs with an established LOQ of 0.01%, or lower, and limit of detection of 0.03% or lower for all cannabinoids tested.” She suggested this maintained an existing policy, and “labs should already be meeting these.”
    • West relayed a “big policy change from the legislation [was] the expanded definition of THC concentration,” and the “vague and broad term” of “tetrahydrocannabinol oils” was now defined in statute. THC/CBD would be “reported as a percentage by weight or volume,” said West, and the acids of each compound would also need to be reported in order to “account for the potential conversion of the acidic form of the compound into the neutral form of the compound.” The language was primarily clarifying the rule, West argued, “we're talking about THC concentration, and…the goal is to distinguish these because they're kind of, they're both used throughout rule, there isn't consistency and so we just want to make sure that everyone's clear on what the terms mean regardless of how we tackle that.”
    • ‘Total THC’ would be the “value determined after the process of decarboxylation or the application of a conversion factor if the testing methodology does not include decarboxylation,” she stated. This language was the “same as above,” West added, and “if two or more…THC compounds are detected in the cannabinoid concentration analysis, the total THC refers to the sum of the total THC of the individual compounds by calculating…where ‘m’ is the mass or fraction of the THC compound and the subscripts represent the individual compounds.” Adding delta-9-THC compounds with other cannabinoid content had been “something that a lot of other states are doing, we do recognize there are a lot of limitations to this,” she explained. West gave the example that if a sample with “delta eight and delta-9-THC were found in the product, you will just have the mass of the total delta nine plus the mass of the total delta eight…individually identified” on a product label.
      • While not directly identifying states which combine different cannabinoids into ‘total THC,’ research on differing cannabis labeling policies included an April 2022 study and law firm guide last updated in October 2023.
    • West mentioned how “a sample fails the cannabinoid concentration analysis if the presence of any tetrahydrocannabinols that do not naturally occur in the plant cannabis or synthetic or synthetically-derived…cannabinoid is detected. Failed tests must be reported to the Board immediately.”
  • Micah Sherman, Raven Co-Owner and Washington Sun and Craft Growers Association (WSCA) Board Member, shared concerns he had “about the sort of misleading inference of putting delta eight and delta nine into the same total number implies that there's equivalency to them. And it creates a meaningless number on our packaging of this total, which is not communicative of anything real. And so putting two compounds that have different properties together into one number is misinformation. And I would like to see the rules not require me to put misinformation on my packaging” (audio - 6m).
    • West responded that the total THC calculation was for testing certificates of analysis (COA). Packaging and labeling (PAL) had been part of their April 23rd conversation and “we're still thinking [of] a threshold. So, if you have over a particular amount, there's more packaging that would need to be on there.” Sherman was similarly unhappy with a COA containing misleading information, as their draft “takes two numbers that mean different things, and totals them together and says, ‘these things have meaning together, and you need to know it.’”
    • Appreciating Sherman’s point, West insisted if “you're reading the statute, letter of the law, this is strictly what that would mean.” Sherman felt that it was “more accurate” to list each cannabinoid category “and not add them together” when communicating information about cannabis products. At this point, Director of Policy and External Affairs Justin Nordhorn spoke up to convey that agency officials had “discussions around that" and had “some legal analysis done.” He said they were still reviewing THC concentration in the statute to see if different cannabinoids “would be recorded independently of one another” while a “threshold would come into play on whether it would need to be on the label type of a thing or not.” He recognized Sherman’s issue, and stressed “we’re still working through that piece.” One proposal would have a ‘serving size’ “represent the delta-9-THC,” said Nordhorn, “no more than 10 milligrams in a unit and…not have the other calculation in there unless…it's exceeding some sort of a threshold.” He promised that “next week, we'll have more of a redline version, so you'll be able to see a little bit more detail on that, too.” Sherman relayed that he’d continue to think about alternative wording.
    • West wanted to know whether cannabis flower included total cannabinoid concentrations in existing packaging rules. Sherman responded that the definitions outlining Total THC were  a “confusing abstraction.” West wanted to have cannabinoids individually listed, however Sherman cautioned that a problem with a total would be any unidentified minor cannabinoids (audio - 2m).
  • Juddy Rosellison, Co-Owner of Trail Blazin’, had been seeking information from WSLCB staff on the current testing results around delta-8-THC in cannabis flower for “perspective” as he’d understood it was a “negligible amount.” (audio - 3m)
    • Rosellison felt this data would be needed in order for officials to designate any threshold amount of cannabinoid content that would “throw a red flag.” West promised to provide information on that, but was aware it was “low…less than 1% of the plant,” and potentially lower than “the detectable limit that we're proposing,” making it a “moot point” until high delta-8-THC cultivars were bred.
    • Rosellison also wanted particulars on how failed tests were reported, and to whom. West remarked that the labs had responsibility to disclose these, and more details on that would be provided (audio - 1m).
  • Jessica Tonani, Verda Bio CEO, observed the highest delta-8-THC in a plant she’d seen in her lab’s samples was between two and three percent (audio - 4m).
    • Tonani added this was higher for distilled oil from cannabis, but believed “that's kind of been a rounding error.” Tonani speculated that this could be due to distillation or storage and recommended that reporting compounds as a percentage of total THC could be helpful.
    • Nordhorn chimed in that her suggestion had been “in line with what we're thinking about." West then added that the labeled ratio of cannabinoids had been used in other states and was under consideration by WSLCB.

• Officials also went through WAC 314-55-109 (Cannabinoid additives) and heard comments on synthetic cannabinoids from attendees.
  • West called the draft changes—released earlier that day—“not as substantive as the ones in the testing section,” merely “reflecting exactly what the statute says.” Reviewing RCW 69.50.326, on CBD content added to a cannabis product, she commented the draft incorporated “amended definitions, does not contain the presence of a synthetic cannabinoid, and has been tested for contaminants and toxins by testing laboratory.” West highlighted “instead of having…THC concentration has to be less than 0.3%, that's been replaced to state that… the CBD product cannot be a cannabis or cannabis product, as…defined in statute. And this was to reflect those new definitions, which means that now, any product with a detectable amount of THC can be considered a cannabis product” (audio - 3m).
  • Shawn DeNae Wagenseller, Washington Bud Company Co-Owner and  Cannabis Alliance Secretary, advised that this would be an appropriate place to “include that this imported CBD product cannot be utilized to convert to any other cannabinoid. I think that would fit nicely here” (audio - 1m).
    • West told attendees that while products were never allowed to contain synthetic cannabinoids, “now we're specifically calling this out. And this is just referencing…a new section created by statute that specifically prohibits the manufacture or sale and production of any synthetic cannabinoid.” She made clear this used an established definition in law and hadn’t been created for the rule implementation. 
  • Related to testing rules, West highlighted language to align their rules with WSDA rulemaking on lab standards, saying the “nomenclature” would change to “cannabinoid concentration analysis” rather than “potency test.” She noted how testing requirements had been referenced but not altered, and “any test results that suggest the presence of a synthetic cannabinoid must be immediately reported to the LCB” (audio - 5m).
  • Wagenseller felt there wasn’t a synthetic cannabinoid testing requirement in the draft, unsure what it would take for testing results to “suggest a presence.” West indicated that compounds or concentrations weren’t “naturally occurring.” She said, “I'm not a chemist, but it's my understanding that there are certain cannabinoids…that can be used as indicators for if there may be a synthetic cannabinoid going on there.” Nordhorn also emphasized this was only for naturally occurring CBD, and other cannabinoids—synthetic or not—couldn’t be used as additives (audio - 3m).
  • Bonny Jo Peterson, Industrial Hemp Association of Washington (IHEMPAWA) Executive Director, was similarly interested in knowing what testing indicators would suggest the presence of synthetic cannabinoids (audio - 2m)
    • Peterson remarked, “in most regards, you can't tell if something's actually synthetic” among the cannabinoids and acids for THC and CBD in the draft “unless you're testing for…something that's made in the processing, not specifically the cannabinoids.”
    • West suggested “it might be easier to write this out and provide examples, but I just do want to note that this language is as it currently exists in rule…nothing changed here. But if there's additional guidance needed [and] I'll definitely follow up with everybody afterwards.”

• Various attendee questions centered on cannabis testing standards, adulteration, and synthetic cannabinoids.
  • Following a break, West chose “to recap some of the feedback and suggestions so far,” and offered a suggestion from WSDA Chemist Tholo Johnson: “what about the edit of ‘(ii) sample fails the cannabinoid conc. analysis if the presence of any THC that does not occur in the plant in natural concentrations…’ This would allow for the trace amounts of d-8 found naturally but not allow for substantial amounts (of synthetic)." West also called out Tonani’s suggestion to have Total THC refer to a collection of percentages or ratios, as well as Sherman’s misgivings over providing the total at all. “What we keep coming back to is…what is THC? And then…how should it be reported,” she remarked (audio - 2m).
  • In chat, Gregory Foster, Cannabis Observer Founder asked “where are the ‘conversion factors’ for non-D9 acids going to be defined?" West answered “if that's something that people are interested in, that's definitely something we can consider, especially if it provides additional clarification” (audio - 1m).
  • Jay Burns, Treeline Analytics Laboratory Director, had several questions for WSLCB staff (audio - 1m)
    • Asking about the LOQ and limit of detection (LOD), Burns suggested the numbers had gotten flipped around, believing LOD should be the lower of the two. West stated that was a typo which would be remedied.
    • Burns also pointed out that the draft required that concentration “must be reported [in] milligrams per gram, if by dry weight, and I don't think anybody does dry weight” (audio - 1m).
    • Referring to Section (3)(a), Burns said since the rule language referred to cannabinoids “marketed or advertised” by the licensee, he wondered whether testing for compounds only occurred if they were being advertised. Nordhorn suggested there was an effort to “minimize and mitigate the impacts of that.” The marketing approach had been an attempt by agency officials to work around the necessity to confirm the presence of other minor cannabinoids by only focusing on compounds when “utilizing that as a selling point.” Nordhorn’s assumption was “that you have a core group of tests, and you don't necessarily test for everything every single time. And so we were trying to figure out how to make sure that we weren't forcing tests for everything, when it's…just going to be” trace amounts. Burns understood their intent, but believed “we're trying to keep synthetics off the market…compounds that are not higher than naturally occurring…but this sort of seems like it's optional to test for it.” He was concerned a bad actor could put a cannabinoid in their product “and just not put it out, claim that it's in there, and then nobody would test for it.” Nordhorn applied a “reasonability standard,” doubting a licensee would go to the effort of adding a synthetic cannabinoid they wouldn’t advertise (audio - 5m).
  • Sherman was curious about analyses being conducted based on cannabis dry weight and conveyed that there’d been debates among licensees as to whether labs reported this consistently. He said there’d been calls for “standardizing that reporting ratio [based on] a particular moisture content, [and] if not, is it possible to include that in this discussion?” (audio - 4m)
    • West commented there had been talks about this between chemists at WSDA and WSLCB but there was a lot of ambiguity they had yet to sort out. She’d heard a lot of comments on the topic, but was concerned it was beyond the scope of SB 5367 implementation. Nordhorn similarly felt it was not within the scope of their rulemaking project.
  • Washington State Health Care Authority (WA HCA) Medical Assistance Program Specialist Harrison Fontaine (audio - 5m)
    • Interested in “broadening” testing requirements based on cannabinoids, Fontaine found “while this limit of detection is pretty reasonable for a lot of products, we definitely have this issue of…products that weigh a lot, potentially having pretty substantial amounts of cannabinoids.” He suggested the amount for beverages “could be like 100 milligrams, which is a lot,” and was curious whether WSLCB staff considered having more rigorous testing requirements for cannabis products above the threshold for cannabinoid content they’d mentioned.
    • Fontaine claimed “other states do have…per unit thresholds or prepackaged thresholds for THC [below which was] outside of the regulated market and above that is inside the regulated market. I'm wondering what your thoughts are on that.” Nordhorn felt this was beyond the scope of the rulemaking project, and “goes down the path of regulation of potency…This particular rule development is about implementing the previous bill. I know there's a lot of interest in that we've had conversations around different potency issues that I think that would fall into.”
    • Fontaine pressed for “a little bit more about that" and shared his understanding that SB 5367 implementation covered detectable amounts of THC. West replied that rules for cannabis drinks and edibles had limits on the amount of THC they could have per serving and in a total package, and indicated Fontaine’s interest “aligned with what Jessica was, was talking about earlier with maybe setting a ratio, or the percent of the product or something like that.” She regarded it as a reality that there were limitations to what constituted detectable THC, but agreed that conversations around potency concerns were ongoing.
  • Rosellison advised that as the RCW 314-55-102 covered testing matrices for different product types, there could be differences between cannabis flower and more refined products like edibles. However, “the further you get away from raw flower, the more likelihood you're going to have for adulteration of synthetic cannabinoids that we're talking about,” he cautioned. He believed that “if I'm limited to 10 milligrams of delta-9-THC in my edible and if I want to add another 10 milligrams of delta-8, but not advertise it, not claim it, it's going to have a stronger effect on the consumer…so there is incentive to not test for it, not claim it, but you're gonna have all of the budtenders [tell customers] ‘these ones really hit hard.’ So there is incentive to do that.” Rosellison encouraged stronger testing requirements for non-cannabis flower products (audio - 4m).
    • West responded that this was the type of conversations members of the WSLCB Cannabinoid Science Work Group (CSWG) were having. “If somebody is incentivized to add something else to it to make it a stronger product and not advertise that and then budtenders were doing exactly that…that would be very misleading to the consumer and I would have, like, greater concerns beyond that.” Rosellison remained focused on what oversight and enforcement options WSLCB would have for licensees who behaved this way. “I think that's a fair point. And we can take that back and kind of mull that over,” Nordhorn stated.
    • Sherman echoed Rosellison’s concerns, and felt opportunities to simplify testing for non-processed cannabis items should be embraced, and "make it as complicated as necessary" for manufactured cannabis products. West then mentioned a CSWG report to “see where they landed with this conversation” (audio - 2m).
    • Fontaine was in favor of point-of-sale testing of final products “applying a higher standard of analysis to…samples in the market.” He felt this could be a check on Rosellison’s concerns around licensees intentionally adding intoxicating synthetic compounds to their products (audio - 1m).
  • Peterson spoke up to say that in addition to LOQ and LOD, the rules should include measurements of uncertainty, a “limit of differentiation." West expressed confidence “that would be a lab standard and under their rules” (audio - 2m).
  • West then asked about “how would you know [as a] manufacturer, or producer or something, that your product had that amount in there, if you weren't testing for it?” Rosellison said that “in a real world, people can access…delta-8 oil,” then supposing, “I'm making a candy” while adding extra delta-8-THC “whether I make it or outsource it, or whatever, I'm going to put it in there, but I'm not going to [test or advertise,] so I don't have to report it. I'm just gonna put it in there because my candy now has a better, better bang” (audio - 5m).
    • West understood the concern Rosellison was getting at, and Nordhorn assured him staff would discuss it after the meeting.
  • Tonani wanted to know about adulterating cannabis, specifically asking WSLCB staff to clarify the penalty for spiking samples with "out of network THC.” Nordhorn called “inversion” of any cannabinoid other than CBD as an additive or adulterant something that could result in enforcement action "up to and including" license cancellation. He noted the accountability would be more severe for businesses found to be incorporating synthetic cannabinoids (audio - 2m).
    • Sherman followed up to see if lawful CBD sourced within the legal cannabis system could be lawfully converted into delta-8-THC. Nordhorn commented that any conversion of cannabinoids was considered to create a synthetic compound and was prohibited. West felt language already in WAC 314-55-109 was "supposed to address that" (audio - 2m).
  • Amber Wise, Medicine Creek AnalyticsScience Director, hoped to hear more about enforcement for labs, such as end product testing for specific compounds (audio - 4m)
    • “I would very much appreciate knowing what synthetics you are testing for so I could potentially align my lab with those molecules,” she said, in case “I run into a situation a lot where clients are popped for some very small amount of pesticide run at the WSDA lab that we don't have on our list, and we're unable to help them identify sources and whatnot.” Wise wanted a sense “of what are the State's plans for enforcing [and] what sort of instrument or lab would be used for testing these?” West and Nordhorn agreed that was still being worked out, and while enforcement action had traditionally been "complaint driven" there could be “randomized” testing, but all would be done by WSDA.
    • Wise similarly wanted clarification about whether enforcement staff would be using “LightLab boxes for cannabinoid analysis” that had been purchased in 2022 since she had several concerns around them. While Nordhorn hadn’t heard of plans to use the equipment for this purpose, Wise insisted formal clarification would help her in submitting final comments on the draft.
      • In November 2022, WSLCB finalized purchase of additional cannabis testing equipment, such as two mobile LightLab 3 Analyzer, Law Enforcement Version kits.

• Policy and Rules Manager Cassidy West concluded the meeting with a brief reminder about the next event and steps in the rulemaking project (audio - 3m).
  • West relayed that testing based on product type, enforcement mechanisms, and putting a measurement of uncertainty in either WSLCB or WSDA rules were themes she’d picked up on.
  • Reminding attendees of the final focus group on Thursday May 2nd, West said “we will review all the rules” and assured everyone she would “work on getting a draft up…of all the rules with track changes, and then a clean version so you can see what changed.”
    • The afternoon of April 30th agency representatives released a combined redline draft of all of the draft rule changes.
  • West remarked that the public could “submit written comments before we start for real…finalizing the draft proposed rules” on May 15th.

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