WSLCB – Board Caucus
(October 15, 2019)

Implementation of the new prohibition against “flavored vapor products” occupied the Board in preparation for multiple rounds of emergency rulemaking.

Here are some observations from the Tuesday October 15th Washington State Liquor and Cannabis Board (WSLCB) Board Caucus.

My top 3 takeaways:

  • Implementation of the new prohibition against “flavored vapor products” occupied the Board.
    • Following an executive order from the Governor, the Washington State Board of Health (SBOH) banned the sale of flavored vaporizable products in response to seven cases of vaping associated lung injuries in Washington. This caucus was the first time the Board met with rulemaking staff following SBOH’s adoption of emergency rules last week, though the WSLCB response was already underway including licensee notification and revised vapor products information detailing agency interpretations of the new Department of Health (DOH) rules. Earlier, vapor product warning signs were shared at the September 18th Board Meeting and the WSLCB contacted cannabis licensees requesting voluntary disclosure of all vaporizable cannabis product ingredients.
    • Cannabis Policy and Rules Coordinator Kathy Hoffman started off by reminding the Board that the executive order directed WSLCB’s actions to create new signage and require “disclosing all of the compounds, additives” in vaporizable cannabis products. Hoffman said two new emergency rules and one minor change to a CR-102 would be presented for adoption at the October 16th Board Meeting the following day (audio – 22m):
      • The first emergency rulemaking would make new vapor product warning signage (October 11th version, en español) mandatory at all cannabis retailers.
      • The second emergency rulemaking would require disclosure of vaporizable cannabis product ingredients, rules which Hoffman termed “much more thorough” than existing disclosure requirements in WAC 314-55-105.
      • A “scheduling hiccup” necessitated a minor change to the recently adopted CR-102 for the open rulemaking project to implement 2019 vapor products legislation. Hoffman planned on “moving the hearing date for vapor products” to Tuesday November 26th from November 13th. The written comment period for the rulemaking project would also be extended through the 26th.
    • Hoffman said her staff had been meeting “pretty much as often as we can meet” to form new rule packages in response to the emerging situation and the actions of other parts of the state government. She noted the agency worked with “industry” and/or “four or five” unnamed processors to develop a new disclosure form for vaporizable cannabis product ingredients. While originally intending for the form to be online, Hoffman conceded the agency didn’t “have the capacity to do that at this point.” Instead, processors would be required to fill out a “three page” form and keep it “maintained on the premises. And then updated on a regular basis.” She indicated the agency planned to re-allocate resources to create a database-backed online version of the disclosure form. Should a substance in vaporizable cannabis products be reliably linked to the injuries, the WSLCB planned to use the records to identify and contact licensees with implicated products. Enforcement officers would be able to review and copy cannabis concentrate ingredient disclosure forms during visits to processor facilities. 
    • Board Member Russ Hauge asked if data collected on the form would be made available to the DOH. Hoffman said “just to us, at this point, as I understand it.”
    • Hauge asked why there wasn’t a clear requirement in the emergency rule for processors to provide a copy of the disclosure form to WSLCB after filling it out. Hoffman answered that “Enforcement and others” preferred to avoid a batch of paperwork when their staff had “no way to really cross-reference any of this at this point.” Absent a “record custodian who could keep and enter all this into a spreadsheet,” Hoffman asserted the forms could get lost or accidentally mishandled within the agency if they didn’t prepare infrastructure to host it. Hauge flatly rejected the proposition that the agency “wasn’t going to collect” the forms they were asking processors to fill out while Hoffman insisted “that information will be available to us on demand.” Hauge acknowledged there were “hardware issues” if the agency wanted the forms submitted online, but wasn’t satisfied with telling processors to “hold on to it. We’re not going to do anything with it.”
    • Hoffman and the Board went back and forth on the proposal for some time.
      • Board Member Ollie Garrett believed the agency wouldn’t be able to review compounds in a timely manner if forms remained at processor’s facilities.
      • Hauge acknowledged staff time spent developing the emergency rule draft but said it wasn’t a “fully baked idea.” Hoffman reiterated that it would be cumbersome for all processors to submit lists and then “parse out each additive into a spreadsheet” before knowing if the agency would actually need to recall any cannabis vapor products from the marketplace.
      • Garrett sounded a note of uncertainty about the necessity for the rule, believing that if any compound were found to be a cause of the lung injuries it would become publicly known and processors would stop using it.
      • Hauge imagined a busy processor would put a disclosure form they weren’t required to disclose “on the back burner.” He suggested that licensees would consider the form “low priority” because they might tell themselves “apparently [it] isn’t high-priority to the Board, I mean, they don’t care.”
      • Hauge said that he’d be critical of the Board passing any rules which “we have no intention of enforcing.” Hoffman responded that there was a potential recordkeeping violation for any business not maintaining the form.
      • Hauge was skeptical whether the rule, as drafted, reflected the “public health emergency” declared by Governor Jay Inslee and confirmed by the SBOH, and suggested processors be required to send the completed forms to the agency “so we know it’s been filled out.”
    • Hoffman said she would take the concerns raised back to staff and “see if they have the capacity to collect” the forms for safe-keeping. Hauge stressed all that was needed was “a file cabinet” to house completed disclosure forms and “a checklist” to track which processors had submitted them. Hoffman promised to have staff “rethink” the potential for a reporting component before presenting the emergency rule for adoption the next day.
    • Hoffman said “additional emergency rules” regarding cannabis and nicotine vapor products would be presented at a Special Board Meeting newly planned for October 23rd.
      • The additional emergency rulemaking would address “connecting our retail licensees, our licensing rules and processor licensing rules” to grant WSLCB “the ability to enforce” SBOH’s emergency vapor rules as it pertained to cannabis.
      • Hoffman said that staff intended to introduce another emergency rulemaking regarding “summary license suspensions and petitions for stay” for vapor product licensees.
      • Hoffman estimated drafting a total of five new emergency rules for adoption at the October 23rd meeting.
    • Hauge later asked what WSLCB had gleaned from the responses of other states to the vaping scare. Hoffman was uncertain, but did know that New York’s flavored vape ban had been halted through an injunction. She indicated a similar decision was reached after a company sued the State of Michigan following that state’s flavored nicotine vaping product ban. Hoffman added that the definition for “characterizing flavor” adopted by SBOH was also used in Michigan “and maybe Massachusetts” (audio – 4m).
      • On Friday October 11th, the Oregon Liquor Control Commission (OLCC) created temporary rules implementing their governor’s executive order banning flavored nicotine and cannabis vapor products.
      • On Tuesday October 15th, Colorado’s Marijuana Enforcement Division adopted permanent rules (see section “L” on page 103) defining a list of “Prohibited Ingredients” disallowed from “Regulated Marijuana Concentrate and Regulated Marijuana Product for which the inhaled product is the intended use.” The list specified three substances: “Polyethylene glycol (PEG)”, “Vitamin E Acetate” and “Medium Chain Triglycerides (MCT Oil).”
      • On Wednesday October 16th, the California Assembly planned to host a joint informational hearing regarding “Vaping Tobacco and Cannabis Products: Health Effects and Deficiencies in Regulation and Current Law.”
    • Hoffman said the majority of Washington State’s vaping-associated lung injuries “that we’re aware of” were from products that “have come from outside of regulated markets.”
    • Hoffman observed a “conundrum” where people who met the criteria the U.S. Centers for Disease Control and Prevention (CDC) defined for vaping associated lung injuries weren’t “always willing to disclose where they’re getting these products from for a number of different reasons.” She believed “social concerns” complicated accurate reporting of vapor product usage for persons who were underage, “got them from an illegal or illicit source,” or just didn’t want to concede use. “There’s social stigma connected to reporting usage,” Hoffman said.
  • After a lengthy engagement on vapor products, Cannabis Policy and Rules Coordinator Kathy Hoffman briskly covered “regular” cannabis rulemaking and petitions received by the agency.
    • Hoffman’s most recent rulemaking update was during the October 2nd Board Meeting.
    • Packaging and Labeling (PAL, WSR 19-12-029). Hoffman said the agency hosted a listen and learn forum on the draft rules on October 11th which elicited significant feedback from cannabis industry representatives as well as public health and prevention advocates. She anticipated a rulemaking proposal would be ready by October 30th (audio – <1m).
    • Quality Assurance (QA) Testing and Product Requirements (WSR 18-17-041). Hoffman told the Board she’d meet with staff from the Cannabis Examiners later in the day and predicted the QA rule change would “move forward” by the middle of November (audio – <1m).
    • Cannabis Penalties (WSR 18-22-099). Hoffman planned a listen and learn forum “on penalty grids” for October 30th, following a listen and learn forum for earlier sections on September 26th. She expected to advance rules “near the end of the year” (audio – 1m).
    • True Party of Interest (TPI, WSR 18-22-054). Hoffman informed the Board she’d be meeting with industry representatives and Enforcement staff on October 22nd (audio – <1m).
    • Cannabis Production and Canopy (WSR 18-01-058). Hoffman acknowledged staff would be withdrawing an “existing CR-101 we have open for Canopy” so that it could be “updated.” She intended to restart the canopy project after vapor product rulemaking. Hoffman first mentioned the planned reset during the October 1st Board Caucus (audio – 1m).
    • Two new rule petitions would reach the Board in “the first part of November” and Hoffman said she’d be “talking about the petition on transportation” (audio – 1m).
  • Revised and new dates for Board meetings were taking shape.
    • Board Chair Jane Rushford was considering changes to the Board’s calendar during the prior week’s Executive Management Team meeting.
    • Executive Assistant Dustin Dickson clarified several upcoming meeting dates (audio – 1m):
      • A newly announced Special Board Meeting was scheduled for Wednesday October 23rd.
      • The agency cancelled the November 26th Board Caucus and November 27th Board Meeting, to be replaced by a Special Board Meeting on November 26th.
      • A regularly scheduled Board Meeting for December 25th would be cancelled in favor of a Special Board Meeting on December 18th.
    • Dickson reminded the Board of a determination to move the Board’s planning retreat to February 25th. The Board’s last planning meeting was July 18th, 2018 (audio – <1m).
    • Cannabis Observer tracks all of these cannabis-related policymaking events on calendars you can subscribe to.
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