DOE - Cannabis Science Task Force Steering Committee
(August 5, 2021) - Agency Request Legislation

DOE - CSTF Steering Committee - Presentation - Legislative Report Draft Outline - Slides 5 and 6

Potential agency request legislation would create an Interagency Coordination Team (ICT) to define testing lab standards and remove the deadline for transfer of lab accreditation authority.

Here are some observations from the Thursday August 5th Washington State Department of Ecology (DOE) Cannabis Science Task Force (CSTF) Steering Committee meeting.

My top 3 takeaways:

  • Task force members questioned the scope and cost of potential agency request legislation for the 2022 session to create the ICT, which would be responsible for defining cannabis testing laboratory standards.
    • Kendra Hodgson, WSLCB Cannabis Examiner Manager and committee member, started off by establishing that some of the potential legislation “stemmed from recommendations that have come from the task force” to create a new multi-agency regulatory entity to serve as the “client.” In the spring of 2020, Washington State Liquor and Cannabis Board (WSLCB), Washington State Department of Agriculture (WSDA), and Washington State Department of Health (DOH) staff began meeting to consider “what a program like that would look like, how would we navigate that, what kind of structural pieces would we need.” They consulted and coordinated with representatives from the Governor’s Office as well as leadership from WSDA, WSLCB, DOH and DOE, Hodgson said (audio - 4m).
    • Nick Mosely, Confidence Analytics CEO and committee member, was curious about who would be requesting the ICT budget and what agency would receive it. Hodgson spoke to the malleability of the resulting program, saying WSDA and WSLCB staff were taking the bill forward “jointly.” The input they’d received called for “one overarching budget, but ultimately...each agency would be appropriated their portion of it,” she remarked, and able to request “reoccurring” funding in the future (audio - 4m). 
      • Mosely’s understanding was that if each state entity had their budgets then the ICT would exist centrally as an agreement between them, but Hodgson made clear the draft legislation “will form the ICT” while memorandums of understanding (MOUs) would cover “where staff are housed.”
      • Mosely asked about precedent for structuring a regulatory entity in that way. Hodgson responded that Kelly McLain, WSDA Policy Advisor to the Director, had “done this kind of work before” and called the ICT “a little bit similar” to how state task forces operated.
      • The subsequently released DOH budget and legislative proposal for 2022 identified a potential ​​$818,000 request for Cannabis Laboratory Testing along with $2.1 million to upgrade the medical cannabis registry.
    • Mosely also asked about the authority of the ICT, in particular if they’d exercise rulemaking power independently of the participating agencies. Hodgson answered that “lab standard authority” would be within WSDA while rules “on the product side” would be under the purview of WSLCB and DOH rulemaking. She described the ICT as “the operational arm” defining lab standards which would be enacted by WSDA staff. As the ICT would be staffed by DOH and WSLCB representatives, Hodgson explained that they could “go back to our agencies when there’s things we need to do in our rules” (audio - 2m).
    • Mosely then inquired as to the scope of rules they could expect related to ICT activities and whether rulemaking would include opportunities for public feedback. Hodgson stated the ICT’s scope would be limited to lab standards and rulemaking would follow public engagement requirements in accordance with the Administrative Procedures Act (APA, audio - 1m).
    • Finally, Mosely asked when stakeholders could expect to see the draft request legislation. Hodgson was uncertain (“I don’t know the timeline of that”) and Mosely requested follow up (audio - 1m).
    • Jeff Doughty, Capitol Analysis CEO and Chemistry Manager and committee member, wanted to know which agency would retain authority to enforce lab standards. Hodgson replied that “some of that is to be determined” but authority for the standards would be with WSDA and authority for accreditation would reside with DOE. WSLCB authority was limited to cannabis “licensees and the product standards,” she said. Doughty wondered if WSDA representatives would have enforcement duties over labs. Hodgson’s understanding was that while the WSDA would be setting the rules, DOE staff would manage lab accreditation and ICT staff would offer input to both agencies (audio - 3m).
    • Amber Wise, Medicine Creek Analytics Science Director and committee member, inquired about estimates for the budget request and staff for ICT. Hodgson reported that they weren’t prepared to share their “initial numbers” as the draft was still subject to change and could “add to confusion” at this stage. Nonetheless, she anticipated that “some of my early numbers will probably be reduced...they’ll be things like rules staff, attorney general support,” subject matter experts, and would occur across several agencies. But as it was expected to be “a full program” for WSDA, that department would have “more staff” involvement, Hodgson predicted (audio - 4m).
  • A second request bill under development dealt with the timeline for the transfer of responsibility for lab accreditation from WSLCB to DOE, which also elicited several comments and questions from lab representatives.
    • Jennifer Carlson, DOE Environmental Assessment Program Manager and Policy coordinator for the CSTF, briefed on a second potential agency request bill. She noted the “key recommendations that are necessary for improving the accreditation system” developed by steering committee members led to “more clarity and more detail” regarding “implementation steps that are needed” for participating agencies. To ensure task force recommendations could be part of implementing a transfer of authority, Carlson said, “Ecology is considering a proposal for the 2022 session that would modify the timeline of when ecology oversees the accreditation role.” She explained the proposal was for DOE staff to take on lab accreditation responsibility once three benchmarks were met (audio - 2m):
      • “The new lab standards will be placed into rule,”
      • “We have the formation of” the ICT,
      • “The availability of in-matrix cannabis proficiency tests (PT) for pesticides, potency, and residual solvents.”
      • Carlson said with these three benchmarks met, “Ecology then can provide the accreditation program that was envisioned” in the 2019 legislation creating the CSTF, which set a deadline for transfer of accreditation authority on July 1st, 2024.
    • Mosely reflected the reason for pushing back the timeline as being due to staff’s sense that there “milestones that need to be met before ecology can take on accreditation.” He then asked whether agency representatives were declaring that the benchmarks “had not been met,” uncertain how the task force could be “three years out and we’re already pushing the timeline back” (audio - 5m).
      • Annette Hoffmann, DOE Environmental Assessment Program Manager and CSTF Chair, stated that “robust lab standards” were developed but were “not yet in rule” and there was a “strategic need for, for the implementation steps” to be in place before the transfer was completed. Additionally, she argued that the ICT had to be “formed” and that the CSTF was only now reaching the level of detail regulators needed. Hoffmann observed the steering committee had yet to settle on appropriate PT standards, and had failed to get a prior “test the ground” as well.
      • Mosely acknowledged those were important points to reach prior to transfer of accreditation, but remained curious “why we’re pushing the timeline back now when we have three years.” He commented that request legislation to form the ICT would move forward and agency rule development would continue, leaving him feeling that the task force was “on track” to meet the existing deadline. Hoffmann replied that agency representatives didn’t “know how these things are going to make it through the legislative cycle” and the changes would help “align” the transfer with the benchmarks from the CSTF.
      • Wise had similar concerns as Mosely, wondering if the draft legislation would seek a “specific extension.” Hoffmann said they wanted to utilize “implementation steps in the strategic order that makes sense” rather than set a new deadline (audio - 2m).
    • Mosely wanted to know about the fiscal impact of the proposal and the chance for stakeholder input. Carlson said a fiscal note was being put together, but the existing draft didn’t propose “any new costs.” She added that an announcement to stakeholders would be distributed by September and promised that they’d reach out to Mosely directly for feedback as well as representatives of cannabis trade associations (audio - 2m).
    • Doughty commented that he agreed with others’ hesitation over the need for the request bill at this stage, feeling that the first two reasons for the change seemed valid. However, “because we already kind of have an 80% solution” for PT requirements that just weren’t yet in-matrix, the PT issue appeared non-critical and could be adjusted before or after accreditation was transferred to DOE (audio - 7m).
      • Hoffmann pointed out that the recommendation to have “in-matrix PT for cannabis products” came from the task force “as needed, as necessary.” Mosely agreed that “in-matrix PTs are where we want to go” and represented “the perfect model.” But he was confident that there were other PTs “in hemp matrix that are pretty similar” and gave “some idea of what we’re talking about” and at the same time a “better solution...than what we’re currently facing with accreditation standards.” Hoffmann didn’t think the issue was “unsolvable” and referenced in-matrix PT processes that were used in other legal cannabis systems.
      • Jessica Archer, DOE Environmental Assessment Program Statewide Coordination Section Manager, concurred with Hoffmann’s assessment and considered the establishment of the ICT as “indicative” of the need for “ongoing technical guidance” regarding lab accreditation. Hemp-matrix solutions were suitable for some requirements, she stated, but for “potency and pesticides and residual solvents” task force members had found hemp PT was “not a suitable surrogate.” Doughty voiced concern that “the longer this takes, the harder it is” for the “labs to survive.”
    • Wise understood Archer’s sentiment, but said momentum should be maintained as “the longer this takes, the less trust that the consumers and the producers and processors have in the science that’s going on in the state.” Archer mentioned that the “sequencing of these items” was important and that some topics the task force had deemed important hadn’t been a part of the enacting bill. Additionally, she indicated that “the rulemaking process really is two years” and that having PT standards in place, rather than still being designed, was preferable. Hoffmann added that transfer of accreditation to DOE would only help labs if “we have these pieces in place” and would otherwise give a “false sense of security” to the cannabis industry and the public. It remained possible to meet the initial deadline for transfer, Hoffmann noted (audio - 6m). 
    • Mosely asked about the hurdles to reaching in-matrix PTs, saying his memory was that they were being delayed by a “need for legislation and rulemaking” in order to have “commercial providers to make in-matrix PTs available.” Ryan Zboralski, DOE Chemist and PT Work Group lead, joined the discussion to say that aside from the problems mentioned by Mosely there was an issue of traceability, since “the material being used to make the PT...would likely have to find a way to stay in” lab traceability systems “that we didn’t think was possible at this time.” Mosely believed that PT was “not a laboratory methods concern, and it’s certainly not a product standards concern. It is 100% an accreditation concern” and should be under the rulemaking purview of DOE staff (audio - 4m). 
    • Mosely then inquired as to why legislation on in-matrix PTs wasn’t being prepared for 2022 if it was “necessary in order to open the avenue for commercial providers to bring in-matrix PTs to Washington...if legislation is what holds us back...then why is Ecology not addressing that this session?” (audio - 5m)
      • Archer called DOE an “independent accrediting body” which shied away from “directing PTs” in the “other laboratory markets” where PT providers were already available. With cannabis, she described DOE officials as “dependent on, on other agencies to...implement the key elements” in testing requirements. Archer concluded that department staff couldn’t establish a PT program, or propose “legislation on other agency's rules.”
      • Several members became curious as to which entity had responsibility for promulgating such rules. Hodgson attributed the role to the ICT as it was “under the lab standards umbrella.” The rulemaking authority would reside within WSDA, but she said ICT members would be “tackling that problem once we're stood up.”
    • Mosely’s last question was about an in-matrix proficiency testing pilot program proposed by the PT Work Group as he wanted to know if he could access the “information pursuant to that project.” Hoffmann advised him to reach out to Zboralski (audio - 5m).
  • During general public comment, Cannabis Observer Founder Gregory Foster shared his views on the two legislative proposals under development (audio - 5m).
    • Foster recognized the value of proposing the ICT request bill, saying it “makes a lot of sense.” As for the second proposal, he acknowledged there could be “strategic value in having both bills move forward” as the Ecology proposal could “apply pressure” for lawmakers to pass the ICT bill. However, Foster said he was not “really a fan of removing the deadlines because that does serve an important forcing function.”
    • As to legislative strategy, Foster commented there was value in having “things that you can give up in the process of a bill moving through” a legislative body and while in-matrix PTs would be "nice to have," they weren’t “essential.” If the proposal were to move forward, he suggested clarifying “what the completion criteria are” for standing up the ICT and defining new lab standards, especially as WSDA staff could break up initial standards into “rulemaking parts” that might be implemented over different time frames. Foster was also curious about when the ICT would be regarded as “done”: when the legislation took effect, when the relevant agencies entered into MOUs, “or some other criteria.”
    • He thanked the committee members for their work and requested inclusion as a stakeholder in order to offer “more useful feedback.”
      • At publication time, Cannabis Observer had not received information about either potential agency request bill directly from agency staff.
      • On August 16th, Carlson emailed undisclosed recipients “Ecology's Proposed Cannabis Lab Accreditation Timeline Agency Request Legislation” which included draft bill text and a summary of its effects. Carlson requested that recipients “provide your feedback by Wednesday, August 25, 2021.”
      • Cannabis Observer would like to extend its thanks to Nick Mosely of Confidence Analytics for sharing this public information.

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