WSLCB - Webinar - Advocacy and Rulemaking
(November 12, 2020) - Summary


In addition to advocacy training, participants learned about future WSLCB rulemaking on advertising, a draft Delta-8-THC policy change, and the Cannabis Regulators Association.

Here are some observations from the Thursday November 12th Washington State Liquor and Cannabis Board (WSLCB) Advocacy and Rulemaking webinar for “community prevention and public health partners.”

My top 3 takeaways:

  • Policy and Rules Manager Kathy Hoffman provided a breakdown of the WSLCB’s rulemaking process and suggested preferred ways to advocate to her team.
    • Hoffman’s presentation addressed the rulemaking process first, similar to an overview she offered at the HB 2826 Implementation Listen and Learn Forum on September 1st (audio - 11m).
      • CR-101. WSLCB Policy and Rules staff initiated rulemaking projects by seeking board approval to file a CR-101 with the Washington State Office of the Code Reviser (WA OCR), she explained. Written public comments were accepted during this stage which often included a listen and learn forum, an engagement innovation introduced by Hoffman.
      • CR-102. Staff then offered proposed rule changes as part of a CR-102 package. Written public comments on the proposed rules were sought, and a public hearing was hosted. These events gave agency staff an opportunity to engage stakeholders, Hoffman said, adding the agency also produced supporting documents “depending on the complexity” of rules under consideration.
        • Supplemental CR-102. Sometimes substantive changes to proposals were necessary. Revision of proposed rules necessitated a new public hearing as would occur with the Quality Control Testing and Product Requirements rulemaking project on November 18th.
      • CR-103. Staff would then present final rules as part of a CR-103 package for the Board to vote on adoption of changes. Hoffman noted documents at this stage included a memorandum addressing comments and describing implementation, all of which conformed to the State’s Administrative Procedures Act (APA).
        • Effective Date. She said that most rulemaking became effective “31 days after filing” with the WA OCR.
    • Distinguishing statutes from regulations, Hoffman made clear that the agency was empowered to modify the Washington Administrative Code (WAC), but laws in the Revised Code of Washington (RCW) could only be changed by the State Legislature. She described the scope of WSLCB rulemaking authority as the definition of “guidelines regarding the product production, processing, and retail sale for liquor, cannabis, tobacco, and vapor products” as well as “penalties and fees where expressly mandated in statute into rules.” For this audience, Hoffman emphasized the agency could not establish rules for “consumer behavior, product consumption” nor how products were handled “once they leave the establishment that the LCB licenses” (audio - 4m).
    • Hoffman provided suggestions for engaging in advocacy at WSLCB (audio - 3m):
      • She encouraged participants to sign up for agency email announcements which covered “any kind of agency activity.”
      • Hoffman said, “I can’t emphasize enough how important it is to participate in the listen and learn sessions” which were now held virtually.
      • She encouraged the assembled public health and prevention advocates to coordinate with WSLCB Public Health Education Liaison Sara Cooley Broschart who served as “a resource for you.”
      • Lastly, “follow board meetings and board caucus sessions” on WSLCB’s website.
        • We would be remiss not to encourage readers to leverage Cannabis Observer to track WSLCB policymaking activity as well as cannabis policymaking events at many other state, regional, and local organizations in Washington.
    • Hoffman said her team favored “substantive comments” that “identifies an issue you have with” a rulemaking project or proposal; “tells us why” it would be a problem; “then offers us factual, unbiased, and verifiable information for us to consider.” She encouraged inclusion of specific references, verifiable facts, and proposed changes towards “a reasonable, new alternative or revision to the alternatives presented.” Hoffman also asked for direct references to “unclear” information or arguments in the agency’s rulemaking materials (audio - 10m).
    • Later, Hoffman noted additional resources including the WSLCB Marijuana Dashboard and how to make a public records request of the agency. She acknowledged agency staff had removed some “licensee specific information” from the WSLCB website due to concerns “that information was being used for some targeted theft and some other criminal activity.” A map of cannabis producer and processor locations was password restricted as “a level of protection” for cannabis businesses (audio - 2m).
  • Hoffman presented rulemaking updates before describing anticipated future rulemaking projects, providing more detail on her interest in revising advertising rules than had been previously disclosed.
    • Hoffman mentioned the agency maintained a rulemaking schedule but emphasized it was still “tentative” (audio - 1m).
    • Tier 1 Expansion (Rulemaking Project, audio - 1m, audio - 1m). Hoffman stated that “sometimes...the landscape of what we’re looking at changes.” The tier 1 expansion rulemaking project had been impacted by the continuing coronavirus pandemic and she couldn’t say “when that rule project will move forward or how.” Undertaken as an effort to “support our tier 1 licensees” (“about 190” businesses), Hoffman emphasized they were “the smallest number of licensees” producing cannabis and she wasn’t certain that “all those licenses are being used.” After hosting two listen and learn sessions then soliciting more input via a survey, Hoffman said to expect a CR-102 “we’re hoping by the first part of December.”
    • HB 2826 Implementation (Rulemaking Project, audio - 1m, audio - <1m). Hoffman said her team was “putting a framework around the way that the Board can prohibit certain excipients that may be dangerous” in cannabis products. She explained that a CR-102 “should be presented to the Board on December 9th” followed by the CR-103 “I’m assuming towards the end of January or early part of February” of 2021.
    • Quality Control (QC) Testing and Product Requirements (Rulemaking Project, audio - 1m, audio - <1m). Hoffman noted this rulemaking project had started in August 2018 and represented “a lot of hard work" towards “adding pesticide and heavy metals testing to the current suite of I-502 tests.” The public hearing was set for November 18th, she commented, and “we assume we’ll have a CR-103 to be presented to the Board early part of January.”
      • Review the long history of the QC rulemaking project in the November 16th Week Ahead. 
    • Location Compliance Certificates (Rulemaking Project, audio - 1m). Hoffman told the group that implementation of SB 6206 would allow retail licensees to open even “if another business that may prohibit their being able to open comes along after they’re already situated and licensed” which “does happen sometimes.” She anticipated the CR-103 would be presented to the Board on December 9th.
    • Hoffman then offered her latest projections for new rulemaking on the horizon.
      • Allowances (audio - 1m). She said that “several temporary allowances to support businesses during COVID-19” were under review to develop “our agency position.” Hoffman wanted the agency to be prepared in the event allowances which would “require a statutory revision” were introduced as legislation. Hoffman added that WSLCB would be “putting together information to share with all of our partners.”
      • 2021 Legislation Implementation (audio - 1m). Hoffman shared her expectation that some bills passed during the 2021 legislative session would necessitate agency action, but she was only aware of one potential alcohol-related bill. Hoffman believed WSLCB was “getting pretty close to the time that we will see” prospective legislation.
        • Legislation pre-filing “starts on the first Monday in December prior to the commencement of the session,” according to the legislature’s Guide to Lawmaking. This year, that would be Monday December 7th.
      • Advertising (Prospective Rulemaking Project, audio - 2m). Hoffman called cannabis advertising rules “something we’re interested in.”
        • She had “found that the method, media, and mode of advertising has expanded - and is expanding exponentially.” Hoffman said social media in particular represented “all the different ways that cannabis advertising is seeping into places that I don't think were really envisioned when I-502 was passed in 2011/2012.” She indicated WSLCB staff wanted to “go back and take a look at those” and declared “we will be opening up cannabis advertising rules" after the legislative session.
        • Hoffman added that she presented on cannabis social media advertising during a Regulators Roundtable “on what LCB was seeing on the social media side and how pervasive that advertising is." She’d asked other state regulators about their efforts, and paraphrased that responses revealed a "very complex and interesting area of regulation” having "complexities and complications with respect to freedom of speech and those types of things." Hoffman predicted her team would be starting a difficult rulemaking project, and asked to “enlist” as much participation as possible from the assembled public health and prevention advocates.
        • Hoffman was later asked when the agency would start its advertising rulemaking project. She responded, “probably after legislative session” so staff could be sure to be “aware of what’s happening in the legislature so that we’ll be poised to be able to begin implementation as soon as possible.” She indicated 2020 advertising legislation, HB 2321 and HB 2350, had put the agency “on the edge of our seats” as to whether or not they should begin desired rulemaking - but neither bill was passed. In 2021, Hoffman would be prepared to file a CR-101 on the topic between “March, April, [and] May.” She encouraged those who observed violations of existing advertising rules to report it to the agency’s Enforcement and Education division, while those with interest in advertising changes should “keep track of the concerns that you’re seeing” and share them with Hoffman’s team. She added that, in her graduate studies, she encountered opinion pieces on advertising impacts but looked forward to creating “really quality data with very few limitations” and with “a really good methodology” (audio - 4m).
        • Hoffman’s last public mention of a potential advertising rulemaking project was in November 2019 after she predicted a “revisit” of advertising rules weeks earlier. In August 2019, Enforcement and Education Chief Justin Nordhorn and Marijuana Advertising Coordinator Matt McCallum planned to arrange a presentation on cannabis advertising for legislators that were “expressing some concerns around the loopholes and how they’re being applied.” At that time, they hoped to address “a lot of grey areas."
        • WSLCB was involved in two lawsuits in 2019 related to advertising by cannabis licensees. Litigation brought by retailer Hashtag Cannabis (19-2-03293-6 SEA) challenged the constitutionality of outdoor advertising restrictions in RCW 69.50.369(2) and WAC 314-55-155(2)(a). In November 2019, a King County Superior Court judge agreed. The lawsuit was subsequently mentioned in the intent of HB 2350 which called for “enact[ing] provisions reducing youth exposure to marijuana advertising by prohibiting the use of billboards for advertising marijuana. While doing so, the legislature also intends to provide more flexibility for the use of signs and advertisements by marijuana licensees at their licensed premises.”
        • Another lawsuit regarding licensee outdoor advertising brought by Seattle Events, better known as Seattle HEMPFEST, was first discussed by board members in June 2019. On September 4th, a Thurston County Superior Court judge rejected the plaintiff’s motion for reconsideration. At publication time, Seattle HEMPFEST’s lawyer in the case, Fred Diamondstone, contemplated an appeal and was raising money to Help Seattle Event's Battle for Free Speech.
  • Hoffman revealed a substantial draft policy change regarding Delta-8-THC while addressing inquiries about the agency’s collaborative efforts and spoke of the newly formed Cannabis Regulators Association.
    • Washington State Health Care Authority (WA HCA) Prevention Policy and Project Manager Christine Steele opened the event up to questions (audio - 1m).
    • Steele asked about other agencies WSLCB was “working directly with” (audio - 4m).
      • Hoffman replied that the agency collaborated with the Washington State Department of Ecology (DOE) on the Cannabis Science Task Force (CSTF), the Washington State Department of Agriculture (WSDA) on Marijuana Infused Edibles (MIEs), and the Washington State Department of Health (DOH) on medical cannabis rules and products. She expected a process of “alignment” would be necessary at DOH should WSLCB update its QC rules.
      • Asked what would happen “if something comes down from the federal level,” Hoffman agreed with Steele that the agency would “absolutely” work with state and federal officials to implement directives like those around vaping and health. Recalling the implementation of Governor Inslee’s executive order on the vaping associated lung injury (VALI) health scare, Hoffman said Broschart “was just instrumental in organizing thoughts between Department of Health, LCB, and then coordinating with the CDC and making sure that we were in alignment with the CDC on what was happening.”
      • Hoffman then pivoted to describe “some of the concerns” around Delta-8-Tetrahydrocannabinol (Delta-8-THC) and “the conversion of [cannabidiol] CBD to THC” drawing attention to “some draft rules” on the compound from the U.S. Drug Enforcement Administration (DEA). Hoffman claimed, “in Washington state, Delta-8 is considered a synthetic” cannabinoid and “under the Controlled Substances Act it is therefore prohibited.” She noted “it sounds like the DEA has come down” to a similar conclusion which would “support what our statute says.” Hoffman said the interpretive statement was the first document she’d authored for WSLCB dealing with “the existence of Delta-8,” adding that “since it is a synthetic...we don’t want to see that in our system.”
        • An interpretive statement seeking the prohibition of Delta-8-THC could distill out unanticipated consequences. For context and analysis on the potential policy change, see Cannabis Observer’s reconstruction of WSLCB email communications and recent mentions of Delta-8-THC.
    • Steele mentioned the Cannabis Regulators Association (CANNRA) which had been announced that day and presented a question on whether there “was any representation for youth access on this regulatory body” (audio - 2m).
      • Hoffman called it “a lovely question,” and spoke of the Regulators Roundtables she’d attended with WSLCB Director Rick Garza and Broschart. She noted other participants included DOH Health Services Consultant Kristin Haley and University of Washington (UW) Department of Health Services Clinical Instructor Gillian Schauer. She concluded that “public health [was] well represented in” CANNRA.
      • Garza last discussed the nascent organization on September 16th, saying CANNRA evolved out of the first Regulators Roundtable in Olympia in early 2017 with Washington, Colorado, Alaska, and Oregon represented. Since then, gatherings occurred in Portland, Boston, Denver, Juneau, Baltimore, and most recently online.
      • The founding members of CANNRA included “principal state regulators from nineteen jurisdictions: Colorado, Delaware, Hawaii, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, North Dakota, Oregon, Rhode Island, Utah, and Washington.”
      • New York State Director of Cannabis Programs Norman Birenbaum was chosen as CANNRA’s inaugural President and Garza was picked to be the group’s First Vice President.
      • CANNRA’s mission included views that:
        • States weighing cannabis liberalization policies “ out regulators from established markets and programs” and “there has never been an organization to facilitate these interactions or help stakeholders navigate the deluge of biased information and skewed data that is commonly presented as fact.”
        • CANNRA proposed to “identify and develop best practices and model policies which safeguard public health and safety, while promoting regulatory certainty for industry participants” and “strives to create and promote harmony and standardization across jurisdictions.”
        • The group hoped “to ensure federal officials benefit from the vast regulatory and implementation experiences of states across the nation to ensure any changes to federal law adequately address states’ needs and priorities.” In CANNRA’s first news release, Garza was quoted as saying “this body is in position to provide regulatory guidance to the federal government should it move towards declassification of cannabis and legalization nationwide.”

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