WA House APP - Committee Meeting
(February 7, 2022) - HB 1668 - Executive Session

HB 1668 - Definition of Impairing

A definition of ‘impairing’ was added to legislation on cannabinoid regulation along with legislative oversight of WSLCB rulemaking before members recommended the bill be advanced.

Here are some observations from the Monday February 7th Washington State House Appropriations Committee (WA House APP) Committee Meeting.

My top 3 takeaways:

  • Staff reviewed five proposed amendments to HB 1668, “Expanding regulatory authority over cannabinoids that may be impairing and providing for enhanced product safety and consumer information disclosure about marijuana products.”
    • Washington State House Commerce and Gaming Committee (WA House COG) Counsel Peter Clodfelter, who previously provided a briefing on the bill at the public hearing, went over proposed amendments - all but one of which came from Assistant Ranking Minority Member Drew MacEwen, who was also the ranking member of WA House COG (audio - 5m, video).
      • Amendment H-2581.1 by MacEwen
        • “(1) Adds a definition of the term ‘impairing cannabinoid’ to the Uniform Controlled Substances Act. Defines the term as a substance that meets all the following structural and functional criteria:
          • (a) The substance exhibits the structural backbone of tetrahydrocannabinols and tetrahydrocannabinol-like molecules that include the interconnected three-ring system of either a six-carbon aromatic ring, a pyran ring, or a cyclohexene ring (specific known compounds that fit this structural backbone criterion are identified in the definition);
          • (b) The substance possesses significant CB1 agonist activity as demonstrated by binding affinity (Ki) to the CB1 receptors at less than 200 nM; and
          • (c) The substance results in positive effects for all four components of the tetrad test in rodents or reliably causes functional impairment in humans as assayed by a method possessing scientific consensus.
        • (2) Uses the new term ‘impairing cannabinoid’ to replace the phrase ‘cannabinoid that may be impairing’ and similar references in the bill.”
        • The definitions in the amendment were similar to those in SB 5767, drafted by Washington CannaBusiness Association (WACA) leaders in conjunction with “scientists and industry professionals.”  The definitions later appeared in SB 5951 before being stripped out of the bill during its policy committee executive session on February 3rd.
      • Amendment H-2584.1 by MacEwen
        • Would add definitions from H-2581.1 and also “(3) Requires the Washington State University Center for Cannabis Policy, Research, and Outreach [WSU CCPRO] to convene a five-member scientific panel to review available scientific research, data, and regulations of other jurisdictions related to cannabinoids and the regulation of cannabinoids including, but not limited to: (a) Definitions of impairing cannabinoids; (b) definitions of synthetic cannabinoids, synthetically derived cannabinoids, and artificial cannabinoids; and (c) health and safety considerations related to the conversion process and consumption of cannabinoids. Requires a report to the Legislature by December 1, 2022, with annual updates thereafter.”
        • Washington State University (WSU) researcher David Gang, the WSU CCPRO Director, presented on research topics undertaken by the group at the WACA Fall Policy Conference in 2021. It’s Cannabis Observer’s understanding that he was one of five experts who contributed to drafting the definitions in SB 5767, along with Brad Douglass, The Werc Shop Vice President of Intellectual Property & Regulatory Affairs, and Jessica Tonani, CEO of VerdaBio. The three were among experts WSLCB officials invited to join two deliberative dialogue sessions on cannabis plant chemistry in June and July 2021.
      • Amendment H-2602.1 by Representative Eileen Cody
        • “Adds a definition of the term ‘impairing’ to the Uniform Controlled Substances Act. Specifies that the term ‘impairing’ in relation to a cannabinoid means a psychotropic constituent of the plant cannabis which may diminish a person's cognitive, mental, or physical function or ability. Authorizes the Liquor and Cannabis Board (LCB) to further revise the definition by rule for the limited purposes of the provisions of the bill addressing cannabinoids that may be impairing, the LCB's rulemaking regarding cannabinoids, and with respect to non-impairing cannabinoid additives used in cannabis products.”
      • Amendment H-2586.1 by MacEwen
        • “Requires the Liquor and Cannabis Board to consult with members of the Legislature who are appointed by the Speaker of the House of Representatives and the President of the Senate when developing and adopting rules authorized or required under the substitute bill, including related to the sale of products containing certain cannabinoids and synthetically derived cannabinoids. Specifies that the appointed members of the Legislature must be invited to attend each public hearing held on proposed rules authorized or required under the substitute bill.”
      • Amendment H-2579.1 by MacEwen
        • An amendment which “(1) Strikes all provisions of the substitute bill. Adds provisions establishing an alternative approach to regulating cannabinoids with the following components:
          • (a) Defines ‘Impairing cannabinoid’ as a substance that meets specific structural and functional criteria;
          • (b) Adds 12 definitions to the Uniform Controlled Substances Act including definitions for ‘Artificial cannabinoid,’ ‘Cannabinoid,’ ‘Delta-7-tetrahydrocannabinol,’ ‘Delta-8-tetrahydrocannabinol,’ ‘Delta-9-tetrahydrocannabinol,’ ‘Delta-10-tetrahydrocannabinol,’ ‘Naturally occurring cannabinoid,’ and other terms;
          • (c) Prohibits artificial cannabinoids from being used, processed, or sold by any person;
          • (d) Changes provisions about cannabidiol additives in regulated cannabis products and authorizes cannabis processors to use and process hemp and hemp derivatives to use or derive cannabinoids to add to any cannabis product. Requires cannabis products containing hemp or hemp derivatives to be accompanied by a disclosure statement identifying the product as hemp derived;
          • (e) Authorizes Liquor and Cannabis Board (LCB) rulemaking on cannabinoid additives related to testing, product safety standards, and labeling for hemp and hemp derivatives used by processors in making cannabis products. Requires rules to ensure the safety and purity of hemp, hemp derivatives, and impairing cannabinoids used by cannabis processors and incorporated into cannabis products sold by retailers; and
          • (f) Extends existing criminal and civil liability protections for licensed cannabis processors and their employees to also provide protection for activities related to hemp and hemp derivatives as allowed under the bill.
        • (2) Adds requirements on laboratory testing of cannabis and cannabis products, including establishing required fields of testing and establishing standards for determining failure of quality control tests. Requires rules by the LCB related to statistical sampling procedures as well as a remediation process for licensees when products fail quality control tests.”
        • Clodfelter summarized that this amendment would “allow for a greater ability for hemp derivatives, and cannabinoids sourced from hemp, to be added to cannabis products…in the regulated system.”
    • WA House APP Committee Counsel Linda Merelle told the committee that amendments H-2584.1 and H-2579.1 would result in “potential fiscal impacts,” increasing the cost of the bill (audio - 1m, video).
    • Chair Timm Ormsby sought clarification on the meaning of “constituent products” used in H-2602.1, Cody’s definition of ‘impairing.’ Clodfelter said the term referred to a "component of the plant, a substance within the plant" (audio - 1m, video).
  • Committee members debated all the amendments, incorporating a definition for impairing cannabinoids and required consultation with lawmakers into the bill.
    • Vice Chair Nicole Macri moved for HB 1668 to be passed out of the committee, opening up an opportunity to amend the bill (audio - <1m, video).
    • MacEwen moved for H-2581.1 to be added to the bill (audio - 1m, video).
      • He described a desire to define impairing, and believed his change took “a scientific approach" (audio - 1m, video).
        • MacEwen repeated a claim made in the public hearing by Vicki Christophersen, WACA Executive Director and Lobbyist, that WSLCB said “it’s going to take ‘em at least 18 months to define what impairing is…we need to move a lot faster than that.”
          • This impression was adapted from WSLCB Director of Policy and External Affairs Justin Nordhorn’s remarks during a different hearing on January 20th. When asked about the timeline for rulemaking to consider allowing products with synthesized cannabinoids to be legally sold, he speculated it was “probably more towards the 18 month line,” though some issues would “likely be done earlier.”
        • MacEwen claimed the definitions were “drafted by their own scientific experts, they being the LCB” and further felt it was “the legislature’s role, frankly, to be involved in the statutory framework, not the agencies.” MacEwen evinced concern that lawmakers had “punted” issues of “definitions, rules, and processes” to state agencies.
      • Ormsby encouraged a “no vote,” in part, because there were “confusing chemical formulas within the amendment” but perhaps more so because HB 1668 could achieve “the right balance of the definition in an upcoming amendment” by Representative Cody (audio - 1m, video).
      • The amendment was defeated in a voice vote (audio - 1m, video).
    • MacEwen moved for H-2584.1 to be added to the bill (audio - <1m, video).
      • He commented, “this takes a scientific approach" by establishing an expert panel, “a more responsible approach.” MacEwen suggested that the "scientific panel" established in the amendment would be better at informing the legislature than “stakeholder input” (audio - 1m, video).
      • Ormsby saw the change as having “the same regulatory loopholes as the previous amendment” that could cause “gaps in realizing the underlying intention of the bill.” He pointed out that WSLCB staff had “consulted with many scientists and interested parties, and they did not reach consensus, but I believe this is a worthy pursuit.” Orrmsby suggested that the report requested in the amendment be made a “budget proviso” instead (audio - 1m, video).
      • The amendment didn’t pass the committee’s voice vote (audio - 1m, video).
    • Cody moved that H-2602.1 be incorporated into the bill (audio - <1m, video).
      • She explained that her proposal would “try to make things a little bit simpler" by defining impairing broadly. Her language would “cover the term ‘impairment’ and allow the LCB to continue to do rulemaking” (audio - 1m, video).
      • MacEwen agreed with the benefits of the amendment (audio - <1m, video).
      • The amendment was approved unanimously (audio - <1m, video).
    • MacEwen moved for H-2586.1 to be incorporated into the bill (audio - <1m, video).
      • He argued that a “legislative oversight process" was an important feature to add to the legislation so as to not be “abdicating our role…when it comes to new markets.” MacEwen didn’t want WSLCB officials setting a “framework” on the topic in rule without legislative review (audio - <1m, video).
      • Cody was dubious that the change was “needed,” as legislators were always welcome “at whatever public rulemaking there is.” But she didn’t perceive any harm, saying with a chuckle, “as long as you promise that I don’t have to serve on this group, I would encourage a yes vote” (audio - <1m, video).
      • The amendment was passed unanimously (audio - <1m, video).
    • MacEwen moved for H-2579.1 to replace all language in the bill (audio - <1m, video).
      • He said his amendment would allow for "broader stakeholder conversation on the underlying bill" and a “necessary statutory framework.” MacEwen felt this approach would be key in developing effective definitions and policy, calling it “much more comprehensive than the original bill” (audio - 1m, video).
      • Ormsby was opposed to the amendment as it included reference to an “uncertain definition of impairing” and “more importantly, it leaves unregulated many of the synthetically-derived cannabinoids.” He argued that the “regulatory loopholes that this creates undermines the underlying bill” (audio - 1m, video).
      • The amendment was defeated by a voice vote (audio - 1m, video).
  • Final comments were offered on the revised legislation before the committee approved it, including several Republican members who voted with the majority.
    • Macri moved that the amended bill comprise a proposed substitute and be recommended for passage by the committee (audio - <1m, video).
    • Ormsby suggested HB 1668 was about giving WSLCB “the tools that it needs to effectively regulate this industry” in the face of “technology advancing, and with synthetics being able to be manufactured in a lab." Wanting the agency to continue regulating “new products and new innovations in this space,” he felt the changes to the bill around definitions would assist WSLCB leaders in their regulatory work (audio - 1m, video).
    • MacEwen agreed on the need for “regulatory oversight” of cannabis products with synthetically-derived cannabinoids, but found the “bill fails in a number of areas" and didn’t go “through a good vetting by all sides” in WA House COG, which he considered “very frustrating.” He accused WSLCB of “a slow reaction in many areas” to “adapt to the way…cannabis has evolved” since legalization, pointedly remarking that he didn’t “have a lot of faith” in them to set definitions and standards as staff “failed to do that for the last ten years.” Instead, MacEwen wanted the legislature to have “a more robust role in this and rely on a number of scientific experts.” He remained hopeful that further alterations could be made when the bill came up for a second reading on the chamber floor, but still advised a no vote on the proposed substitute (audio - 2m, video).
    • A roll call vote resulted in all 19 Democrats on the committee recommending HB 1668, along with three of 14 Republicans (audio - 3m, video):
    • Upon confirming passage, Ormsby said the bill had achieved a “do-pass recommendation” and would be referred to the Washington State House Rules Committee (WA House RUL). At publication time, the chamber had until February 15th to pass the bill.
      • The other bills on cannabinoid regulation, SB 5767 and the senate companion for HB 1668, were not recommended before a policy committee cutoff on February 3rd. HB 1668 had become the most viable option for lawmakers to alter the regulation of cannabinoids for the remainder of the session.

Information Set