The Week Ahead
(October 7, 2019)

The Washington State Board of Health planned to adopt emergency rules prohibiting the sale of “flavored vapor products” including “marijuana-infused extracts or marijuana concentrates for inhalation.”

Here’s a look at cannabis-related policymaking events on our calendars in the week ahead.

Monday October 7th

On Monday at 2pm PT @ WSLCB, the Traceability Integrator Data Sharing Agreement external work group convenes for the third of four planned meetings.

  • This small stakeholder work group is vetting a proposed legal agreement between the WSLCB and third-party software providers who handle traceability data. As the State does not license third-party software providers, yet those software providers in some cases modify data owned by the State, the WSLCB has decided a legal agreement is necessary to define expectations and remedies. Here is the latest draft. On Monday, the group picks up where it left off reviewing the proposed “Suspension and Termination Structure.”

Tuesday October 8th

On Tuesday at 10am PT @ WSLCB, the weekly Board Caucus recurs.

Wednesday October 9th

On Wednesday at 9:15am PT @ the Seattle Airport Marriott, the Washington State Board of Health convenes its monthly board meeting [ agenda, meeting materials ].

  • On Friday September 27th, Governor Jay Inslee announced Executive Order 19-03, “ADDRESSING THE VAPING USE PUBLIC HEALTH CRISIS,” during a forty-minute press conference hosted in Seattle [ video – TVW, video – MP4 ]. The Washington State Board of Health (SBOH) was instructed to issue an “Emergency Rule…to impose a ban on all flavored vapor products, including flavored THC vapor products, at the Board’s next meeting…”
  • On Friday October 4th, the SBOH published several documents in advance of the board meeting which provided context for the upcoming emergency rulemaking [ memo, draft rule language ] as well as 61 PDF files containing written public comments received up to that point. During the hour allotted to consideration and adoption of the emergency rules, “staff from the Department of Health, State Board of Health, and the Liquor and Cannabis Board [were invited to] present information about the executive order, the current outbreak of vapor-related illnesses, draft emergency rule language, and the findings of the Board’s Health Impact Review of HB 1932 Concerning Vapor Products.” WSLCB will be represented by Public Health Education Liaison Sara Cooley Broschart and DOH by State Health Officer and Chief Science Officer Kathy Lofy [ presentation ].
  • The SBOH conducts Health Impact Reviews (HIRs) on request from legislators or the Governor to analyze “how a proposed legislative or budgetary change will likely impact health and health disparities in Washington.” On August 13th, Representative Gerry Pollet filed a prescient request for an HIR of his bill, HB 1932, “Concerning vapor products” requesting staff “focus on provisions that ban flavored vapor products and flavored marijuana products intended for consumption through vaporization or aerosolization.” The 66-page HIR was completed on September 19th [ executive summary ] and SBOH staff will walk through a presentation of their findings at the board meeting.
  • The draft language of the emergency rule makes several important things clear:
    1. DOH plans to adopt a novel definition of “Vapor product” which encompasses both nicotine and cannabis products. In Vapor Products law, the definition of “Vapor product” at RCW 70.345.010(19) includes a specific exclusion for marijuana, cigarette, and tobacco products. The new definition, which will apply within a new chapter in the Department of Health’s rules (WAC 246), makes no such distinction and specifically “[includes], but [is] not limited to, marijuana-infused extracts or marijuana concentrates for inhalation.”
    2. Defines a “Flavored vapor product” as “any vapor product that imparts a characterizing flavor.”
    3. And defines “Characterizing flavor” as “a distinguishable taste or aroma, or both, other than the taste or aroma of tobacco or marijuana or a taste or aroma derived from terpenes or terpenoids derived directly and solely from marijuana or hemp plants that have been grown and tested as required by state law, imparted by a vapor product. Characterizing flavors include, but are not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A vapor product does not have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. It is the presence of a distinguishable taste or aroma, or both, that constitutes a characterizing flavor.
    4. Enforcement of the new “Prohibition” is delegated to “any agency under authority of RCW 43.20.050(5),” namely “All local boards of health, health authorities and officials, officers of state institutions, police officers, sheriffs, constables, and all other officers and employees of the state, or any county, city, or township thereof…
  • Should the SBOH adopt the emergency rule, it will go into effect immediately upon submission of a CR-103E to the Office of the Code Reviser.

Also on Wednesday at 1:30pm PT @ WSLCB, the three-member Board and agency leadership convene their weekly Executive Management Team (EMT) meeting.

Friday October 11th

At 9am PT @ WSLCB, the agency hosts an all-day listen and learn forum for the Packaging and Labeling (PAL) rulemaking project [ agenda ].

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