SBOH – Board Meeting
(March 11, 2020)

Here are some observations from the Wednesday March 11th Washington State Board of Health (SBOH) Board Meeting.

My top 3 takeaways:

  • The SBOH hosted their board meeting online rather than in-person while providing a physical location to accept public testimony to meet the obligations of the Open Public Meetings Act in a time of coronavirus.
  • The SBOH renewed their emergency ban against use of vitamin E acetate in vapor products with WSLCB support and heard an update on the related lawsuit questioning the limits of the agency’s authority.
    • Assistant Attorney General (AAG) Lilia Lopez briefed on a lawsuit against SBOH and DOH challenging their authority to ban flavored vapor products. She said that she’d been “defending the rules challenge for the ban against sale of flavored vapor products when we last talked.” The plaintiffs, which included the Vapor Technology Association (VTA), “moved to appeal the case to the Court of Appeals” which granted “a motion for discretionary review.” Lopez argued, in part, that the case was “moot” as the original flavored vapor products emergency rule was expiring “at the time we filed the brief.” Lopez said the plaintiffs ended up “withdrawing their brief” but not before SBOH saw a supportive “friend of the court” amicus curiae filed by the American Lung Association, Association of Washington School Principals (AWSP), the Foundation for Healthy Generations, and Kaiser Permanente, among others (audio – 3m).
    • Grellner asked SBOH Executive Director Michelle Davis to provide an update on the agency’s expiring emergency ban against use of vitamin E acetate in vapor products in response to multiple confirmed casualties of vaping associated lung illnesses (VALI).
      • Davis shared an updated recommendation to renew the ban stressing that the fate of legislation to regulate vapor products, SB 6254“Protecting public health and safety by enhancing the regulation of vapor products,” remained “uncertain.” SBOH’s emergency rule would expire on March 19th, leading Davis to ask the Board to file another and consider “permanent rulemaking” in the event SB 6254 was not signed into law (audio – 1m).
      • DOH State Epidemiologist for Non-Infectious Conditions Cathy Wasserman spoke to “the science on vitamin E acetate” and reported that a study from Minnesota found the substance in cannabis vapor items seized in September 2019 but not in products from 2018. She added that study of “animal models” was still ongoing. Wasserman said tests of deep lung tissue found vitamin E acetate in “48 out of 51” specimens and failed to identify any “other chemicals of concern” (audio – 3m).
      • Pendergrass supported extending the ban but voiced concern about repeated emergency rulemaking on “a legislative and regulatory issue.” He said he was “not comfortable with us doing this over and over for the next year” (audio – 1m).
      • Lopez chimed in to say that extensions of emergency rules needed “to be based on changed conditions” concerning the topic of the rule. Lopez suggested examples of changed conditions might include recent legislative activity and the results of lung tissue specimens correlating damage from the compound (audio – 1m).
        • Davis asked Lopez if she worried about SBOH’s “statutory authority” to extend the ban. Lopez said she didn’t as their current power “seems to be adequate” while still acknowledging the agency had been sued in response to their initial ban.
        • Grellner jumped in to ask Davis whether SBOH should make the vitamin E acetate ban a “permanent rule” (audio – 1m). Davis replied that it was “a question [she] had for the board” given the uncertainty around SB 6254. She admitted “I’m not hearing a lot of confidence from the lobbyists who follow this issue,” and even if the bill were signed into law there would be a “gap” between its effective date and the expiration of the current emergency rule. Cooper told the board that controversy surrounding the bill had to do with “nicotine levels” rather than the vitamin E acetate ban (audio – 5m).
      • Sara Cooley Broschart, WSLCB Public Health Education Liaison, spoke during public comment to tell the SBOH that her agency supported extending the emergency rule as health officials had found vitamin E acetate “strongly linked” to VALI. With the impending passage of WSLCB’s request legislation, HB 2826, she expressed confidence that the agency could ban vitamin E acetate in cannabis vapor products. However, Broschart warned that WSLCB did not have authority to implement rules prohibiting use of vitamin E acetate in non-THC vapor products absent SBOH’s emergency rule (audio – 2m).
        • On February 5th, WSLCB adopted four revised emergency rules pertaining to vapor products which reestablished the agency’s enforcement authority in relation to SBOH’s vitamin E acetate ban.
    • Pendergrass moved to adopt an extended emergency rule which would be immediately effective. Further, he moved to initiate a CR-101 for permanent rulemaking for “the removal of vitamin E acetate from all inhaled products.” Lopez asked if the emergency extension was due to “changed circumstances” prompting Pendergrass to respond that it was since there was “better evidence” of the compound being “an important component” of VALI. SBOH members approved the extended emergency rule for another 120 days by a unanimous vote (audio – 4m).
  • During a legislative briefing, contingencies were discussed in the event that SB 6254, the Governor’s request legislation on vapor products, was not adopted before the end of session along with implications for state health funding due to vapor product bans.
    • Cooper described the status of SB 6254, saying the bill was “somewhat in response” to Inslee’s executive order on vaping but was also based on “what we know about the youth vaping epidemic.” She noted the latest version of the bill would limit flavoring, “ban disposable vape products,” ban online sales, and ban any use of vitamin E acetate in vapor items. The legislation would also tax vapor products at 18.5% with funding raised dedicated to foundational public health services and enforcement of vapor regulations (audio – 2m).
      • Pendergrass asked for a quick follow up on the bill’s status (audio – 1m).
      • See Cannabis Observer’s coverage of SB 6254’s amendment and passage by the Senate Ways and Means Committee on March 2nd.
    • Turning to SB 6168, the State’s recently conferenced supplemental operating budget, Cooper explained that “as a result of the flavored [vape] ban there was the assumed money that would be going to foundational public health did not materialize, of course, and so we used all of the budget to provide funding to make up for that shortfall” (audio – 3m).
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