WSLCB - Board Meeting
(May 27, 2020) - Summary

The WSLCB Board undertook planned actions to revise and renew existing emergency rules and restart the quality control rulemaking project on pesticides and heavy metals testing.

Here are some observations from the Wednesday May 27th Washington State Liquor and Cannabis Board (WSLCB) Board Meeting.

My top 3 takeaways:

  • The Board accepted Policy and Rules Manager Kathy Hoffman’s recommendations for rescinding and renewing vapor product emergency rules.
    • Hoffman reviewed the planned actions with board members the day before during the May 26th Board Caucus.
    • Hoffman first recommended rescinding the agency’s emergency ban on the use of vitamin E acetate in non-tetrahydrocannabinol (non-THC) vapor products (audio - 3m).
      • The emergency rule had been set to expire on June 4th and was one of four that were revised and extended by the Board on February 5th. It provided the WSLCB with powers to suspend non-THC vapor licenses while providing vapor retailers with corresponding petition for stay powers in relation to alleged sales of products which contained vitamin E acetate as an ingredient.
      • WSLCB’s emergency rules were themselves predicated on emergency rules by the Washington State Board of Health (SBOH). Hoffman said SBOH was "determining whether or not they are going to make their current emergency ban" on the compound into a permanent rule. She intimated that the WSLCB was “going to be very involved in that process - or at least to the extent they’d like us to be."
      • Hoffman explained that although passage of HB 2826 did grant WSLCB new authorities to prohibit the use of particular compounds in any legal cannabis products, the agency continued to have “limited authority over non-THC vapor products.” Even though SBOH could encode a ban in “the near future,” Hoffman advised the Board to rescind their emergency rules and “re-file once our authority is a little more certain.”
      • Board Member Russ Hauge asked about potential “issues with enforcement in the interim” should they rescind the rule. Hoffman noted that non-THC vapor stores were “non-essential services and should be closed.” Anticipating re-filing “in the very near future,” Hoffman was doubtful of “any enforcement concerns.”
      • The Board voted to rescind the ban without further comment.
    • Turning to the vitamin E acetate prohibition in THC products, Hoffman asked the Board to rescind three other emergency rules regarding ingredient disclosure and enforcement of the ban, explaining they would swiftly re-file all three rules under the authority of HB 2826 rather than SBOH’s temporary emergency rules. The Board moved to rescind all three rules (audio - 2m).
    • Hoffman next offered the Board a revised emergency ban on vitamin E acetate in “the production and processing of any marijuana product...under the authority conferred to LCB by way of House Bill 2826.” The move would create “a new emergency rule section,” WAC 314-55-1065. The Board approved the prohibition of vitamin E acetate, a first exercise of their new authority (audio - 1m).
    • Next, Hoffman asked for approval to “re-file emergency rule WAC 314-55-1055” re-establishing the “mandatory disclosure of all compounds used in the production and processing of all marijuana vapor products.” The rule would reference HB 2826 and the ban adopted immediately prior. The Board also approved the revision of the ingredient disclosure emergency rule (audio - 1m).
    • And in their final emergency action, the Board re-established enforcement authority for the ban in relation to Processors and Retailers with similar changes to cited authority as the earlier rules (audio - 1m).
    • Hoffman told the Board she would re-file all updated rules with the Washington State Office of the Code Reviser (OCR).
  • The Board moved to restart a rulemaking project which could eventually change cannabis quality control testing rules.
    • Hoffman asked to re-file the CR-102 on Quality Control (QC) Testing and Product Requirements (WSR 20-03-176), a necessary step after pausing the rulemaking project when the agency was unable to host a required public hearing due to the coronavirus outbreak.
    • Hoffman reported that the original public hearing had been rescheduled from March 18th to April 1st before Governor Jay Inslee’s “Stay Home, Stay Healthy” proclamation on March 23rd prompted the agency to withdraw the rulemaking project on March 27th. She stated the proclamations, which modified the state’s Open Public Meetings Act (OPMA) and Public Records Act (PRA), “severely limited” the agency’s ability “to conduct public hearings as required under the [Administrative Procedures Act (APA)]” leaving WSLCB “unable to hold a public hearing on the proposed rules” as scheduled. Hoffman restated her understanding that the Board’s intention was "to merely temporarily pause this project" until "virtual stakeholder engagement options" were made available and the agency could re-file the CR-102. The “rule proposal itself has not been revised” from the original filing aside from an updated schedule for remaining actions, including a “phase-in timeline” (audio - 4m).
      • June 17: a notice of the proposed rule would be published by OCR.
      • July 8: WSLCB planned to host a public hearing marking the “end of the formal comment period.”
      • August 5: assuming no substantive changes, a CR-103 would be put to the Board to adopt the proposed rule changes.
      • September 4: the new rules become effective
      • March 1, 2021: requirements for pesticide testing take effect
      • September 1, 2021: requirements for heavy metals testing take effect
    • Satisfied with Hoffman’s presentation, the Board approved the new CR-102.
  • A tier 1 producer offered the only public comment using the agency’s new remote testimony capability.
    • Citizens publicly addressed the Board during the last regularly scheduled board meeting on February 5th. The agency cancelled seven board meetings in the intervening time.
    • Mark Ambler, owner of Bellingham-based producer Breeze Trees, talked to the Board about the Small Business Economic Impact Statement (SBEIS) created for the Quality Control Testing and Product Requirements rulemaking project (audio - 3m).
      • He began, “it said that you guys weren’t aware of any issues with the four location sampling procedure...and you think it’s representative of the lots but that’s not the case.”
      • Ambler claimed that “a quarter of the time we do not find the contamination with the sampling procedures [the agency has] in place.” He said that he could offer a plan to improve QC and have “zero problems with false negatives.” He told the Board that WSLCB’s “sampling program is putting your consumers at risk and it is worthy of an emergency action.” Ambler said he’d communicated to Hoffman already about the “cut-and-dried math.”
      • Ambler last publicly addressed QC during the rulemaking project’s late-August 2019 listen and learn forum. He was introduced as a member of WSLCB’s Cannabis Advisory Council (CAC) in July 2019, but was not listed on the agenda at the CAC’s subsequent meeting in December. He was a regular voice during legislative hearings earlier in 2020.