WSLCB - Board Meeting
(December 11, 2019) - Summary

[ Event Details ]

A public hearing for packaging and labeling rules elicited consistent feedback, substantial vapor product rules were adopted, and wide-ranging public comments concluded the meeting.

Here are some observations from the Wednesday December 11th Washington State Liquor and Cannabis Board (WSLCB) Board Meeting.

My top 3 takeaways:

  • The agency’s public hearing on proposed rules for cannabis Packaging and Labeling (PAL) drew largely consistent testimony from advocates and business interests.
    • WSLCB Policy and Rules Coordinator Kathy Hoffman introduced the public hearing with a review of the rulemaking project background and progress (audio - 5m, video).
    • Hoffman listed “competing interests” within the scope of the PAL rulemaking project, including:
      • A desire for cannabis PAL to not be appealing to persons under 21
      • A “concise and flexible framework” for product design and marketing standards
      • Concerns about public safety
      • “Sustainable business practices” and waste management
      • Appropriate warnings for various types of cannabis products
      • “Proving guidance for the provision of structure and function claims”
      • and PAL designs which minimized the risk of “accidental exposure”
    • The result was an effort “to the extent possible in rule” to give the public, consumers, and industry “clarity” around PAL. Hoffman endeavored to include comments from the hearing in any final revisions of the draft.
    • Before opening the hearing for public comment, Rushford reminded participants that testimony would be restricted to a three minute time limit beginning in 2020 as “most people don’t require the full four” minutes, a policy change she first mentioned on November 26th.
    • Don Skakie (audio - 3m, video). A citizen from Renton, Skakie established that his comments were “general in nature” and asked the board to see that PAL for cannabis and alcohol were equivalent when possible.
      • Acknowledging the fledgling nature of the cannabis market, he posited that licensees were often busy running their businesses and not “as well versed and more polished” as compared to established alcohol interests. Nonetheless, Skakie felt the cannabis community was concerned and “[wanted] to be involved.”
      • He was supportive of diminishing packaging waste but cautioned that “further work needs to be done” to address sustainability. He noted some businesses had begun using paper packaging for pre-rolled cannabis joints instead of “plastic snap containers.”
      • Skakie concluded his remarks saying “I’m retired. I’ve got arthritis and I just don’t enjoy having to fight with my packaging to get a product I should have access to.”
    • Lukas Hunter (audio - 3m, video). The Compliance Manager for Harmony Farms, Hunter thanked the agency for their efforts, saying it made his work “a lot easier to have everything orderly” when interpreting rules for his employer.
      • He was concerned about new requirements added to WAC 314-55-105 which required labeling of “serving size or number of draws” for “concentrates, marijuana mix, and usable flower.” Hunter thought the concept of a serving size made sense for infused edibles but noted other product types had “multiple modes of consumption” which he felt called into question its broader “applicability”: “how can we be prescriptive when we don’t know how the end consumer is going to ingest it?”
      • Hunter believed consumers could be affected differently by the same products and research was needed to better estimate serving sizes.
      • Hunter offered a list of specific product types to exempt from the serving size requirement “until we have more sound science as to how cannabis affects the endocannabinoid system of various users.” 
    • Kate Quackenbush (audio - 4m, video). The CEO of infused beverage producer Fractal, Quackenbush thanked the Board personally and on behalf of the Cannabis Alliance saying that PAL had “come a long way” under the proposal even if “there’s more to be done.”
      • Quackenbush offered similar critiques of the “draw and serving size issue.” She read a statement from the Alliance saying the organization understood it was “possible to calculate serving size for edibles as it is definable and quantifiable much like you would see on other food products. However, it is simply not possible to quantify serving size for concentrates and flower, and draw size will vary tremendously from person to person.” Quackenbush agreed with this assessment saying “physiology” or lung capacity were among other factors not well understood in relation to assessment of potential cannabis serving sizes.
      • Wanting “consumers to have a safe and positive experience,” Quackenbush recommended adding label language advising “start low and slow” to encourage consumers to remain mindful of product strengths as “serving sizes and doses are also highly personal.”
      • Quackenbush then addressed the “requirement to include the lot number on the package” saying that it “created complexity on the package” for products comprised of multiple lots without providing “substantial new information that’s not already captured in the numbers already required.” Lot number length had also impacted the size of label barcodes and the ease with which retail stores could scan them.
    • Mindon Win (audio - 1m, video). Representing edibles processor botanicaSeattle and the Washington CannaBusiness Association (WACA), Win expressed satisfaction with the proposed rules: “from the perspective of a processor I think we provide a lot of clarity here.” Like others, he felt there was more work for the agency and industry, “but we’re excited for the direction this is heading.” He praised the reduction in packaging thickness in the rules and Hoffman’s “incredible insightful” process, particularly the “productive and eye-opening” listen and learn session in October.
    • Rachael Weygandt (audio - 3m, video). Serving as the Compliance Manager for edibles maker Evergreen Herbal, Weygandt expressed gratitude for the rulemaking process which helped her “feel like my words mattered.”
      • She echoed remarks on the difficulty of estimating serving sizes for concentrates, stating “I don’t know how a concentrate manufacturer could provide an accurate serving size.” Weygandt cautioned that the 10mg serving size limit for edibles wasn’t what every consumer should take as “there's no science behind” the limit.
      • For lot numbers, Weygandt said it was “a little scary” to see the proposed rule language as “sometimes we do mix multiple lots.” She believed that so long as consumers could “get access to their testing information and their potency information” the details currently expected on labeling were “adequate for what we’re looking for.”
      • Appreciative of the progress the proposal represented, Weygandt nonetheless believed more guidance was needed on permissible language for structure and function claims enabled by SB 5298.
    • Cherylynne Crowther (audio - 4m, video). Speaking on behalf of Prevention WINS, a Seattle substance-abuse coalition, Crowther attested to experience with the state’s Healthy Youth Survey and managing a Drug-Free Communities grant through Seattle Children’s Hospital. She believed “prevention works best” and suggested incorporating that philosophy into WSLCB’s proposed rules.
      • Crowther opposed changing the requirement for external measuring devices accompanying infused beverages. She said she’d seen infused bottles of soda available with tetrahydrocannabinol (THC) concentrations of 10, 100, and 250mg. “The difference to a kid,” she asserted, “is indistinguishable” and not improved by the absence of a measuring cup. She compared it to Tylenol, or “liquid acetaminophen” which had infant, child, and adult doses. Crowther explained, “The problem is, parents regularly overdose their own children without realizing it,” before acknowledging the cup or dropper included with those products for children often came with pharmacist instructions for parents in addition to Tylenol’s Get Relief Responsibly program. She was critical of putting the expectation for acquisition of appropriate measuring devices on the consumer, saying Prevention WINS preferred provision of measuring devices “at the industry level.”
      • While acknowledging the intention to reduce cannabis packaging waste, Crowther opposed halving packaging thickness requirements. She claimed struggling municipal recycling efforts were proof thinner packaging would not “be significant in terms of industry” and worried that “young hands can get into materials.”
    • Andy Brassington (audio - 3m, video). CEO of Evergreen Herbal and WACA’s representative on the Cannabis Advisory Council (CAC), Brassington said he would “wholeheartedly endorse" earlier comments on the improved rulemaking process and largely supported proposed changes.
      • As a parent and grandparent, he was also concerned about underage access to cannabis products, but argued “the packaging is difficult to open,” the products were not marketed to children, and retail stores were not accessible to them.
      • Brassington pointed out that cannabis products were not designed to be administered to children, making external measuring devices “unnecessary.” He emphasized the parental responsibility to keep intoxicating consumables away from their kids in the first place.
      • He thought the agency’s rulemaking “was thorough, was rational” and resulted in better PAL rules “than what it was before.” Brassington concluded that “by-and-large, we can be proud of what we’re doing in the state of Washington.”
    • Gregory Foster (audio - 4m, video). Founder of Cannabis Observer, Foster offered observations springing from his organization’s documentation of WSLCB public meetings, work groups, and listen and learn forums.
      • He joined those who spoke before him in lauding the rulemaking process which he felt had improved greatly since its initiation in 2018. Foster specifically thanked the Board for not including some of the “reactive” interim policies adopted at the start of the year.
      • Foster noted that the PAL listen and learn session in October saw prevention and public health attendees outnumber their cannabis industry counterparts “which is the first time that we’ve seen that.” He credited Rushford’s leadership towards inclusion of “diverse perspectives” and noted the listen and learn forum enabled identification of “common ground on extra-regulatory efforts” like promotion of cannabis lock boxes and “common shared concerns such as environmental sustainability.” Foster believed that consistent application of an inclusive rulemaking format “can only result in better, and stronger, and more long-lasting regulations.”
      • He then noted the shift in participation by prevention community representatives coincided with the hiring of WSLCB’s current Public Health Education Liaison, Sara Cooley Broschart. He commended her “greater outreach” efforts while acknowledging the “fine balancing act that has to be carried out in terms of informing and reaching out to these communities, as opposed to organizing that particular effort.” He expressed his “hope that that work continues in a good way.”
      • Foster claimed cannabis was “one of the more researched substances, but typically from the lens of public health harms” and noted the “research environment is opening up.” He asked the agency to leverage internal talent, such as Research Consultant Trecia Ehrlich, to track contemporary cannabis research. He suggested the Board request quarterly research updates to help inform WSLCB staff and stakeholders.
    • Crystal Oliver (audio - 4m, video). The Executive Director of the Washington SunGrowers Industry Association (WSIA), Oliver shared PAL comments from her group after reinforcing previous comments on the improved “stakeholder engagement process.”
      • Returning to draw and serving size, Oliver said that WSIA opposed applying the proposed rule to mixed cannabis, usable cannabis, concentrates, and vapor products. She suggested it wasn’t feasible to estimate serving limits at that time, particularly for vapor items, as “the technology really isn’t there yet to even control or dictate that.” Oliver was mindful that labeling such limits could “have the unintended consequence of encouraging competition over how many” draws licensees claim is housed in their vape products. She warned the move would “change consumer behavior” and create “competition over this number.” Oliver added that the proposal lacked any definition or standard for measuring draw or serving size, guaranteeing inconsistency in its implementation.
      • Her other concern was the definition of “structure and function claims” added as part of SB 5298 which she found confusing. The definition reads: "Structure and function claims" mean a description of the role of a marijuana product intended to affect normal structure and function in humans, characterized by the means by which a marijuana product acts to maintain such structure or function, or describe the general well-being from consumption of a marijuana product.
      • “I don’t know if you know what that means,” she said, “but I personally don’t.”
    • Hoffman responded to several points made during the course of the public hearing (audio - 2m, video).
      • In defining “structure and function claims,” Hoffman said the agency had worked with industry representatives and developed the definition based on the U.S. Food and Drug Administration’s (FDA) Structure/Function Claims. Hoffman said the language had been refined to “fit within this space.” 
      • The requirement to include lot numbers on labels came “directly from the statute required under [SB] 5298” but said the agency had “come up with a solution to that that we think will be workable for everyone.” She said the alternative approach would be shared soon.
      • On infused beverage measuring devices, Hoffman noted the proposed rules made the devices optional and licensees could provision them. Or, consumers could purchase a measuring cup from a retailer “if they wish to have one.”
    • Katie Mitchell (audio - 2m, video). Owner of Katie’s Baked Goods, Mitchell supported the Cannabis Alliance’s points about serving sizes and lot numbers. She agreed with prior comments on the agency’s improved rule process and “being able to participate.” As a parent and licensee, Mitchell said her business would never market to youth. “These products are intended for adults and they’re sold to adults,” she added.
    • Rushford thanked all of the participants and Hoffman before closing the hearing (audio - <1m, video).
  • The Board approved final rules for Vapor Products slated to take effect at the beginning of next year (audio - 5m, video).
    • The Vapor Products rulemaking project was first opened in January before expiring in May. WSLCB re-filed the CR-101 in June to expand the project’s scope to enact two bills: HB 1873 on nicotine vapor product taxation and HB 1074, the “Tobacco 21” bill increasing the minimum age for purchase of tobacco and nicotine vapor products. The project also included “clarifying and technical changes.” Hoffman described minimal public comments the proposed changes had drawn during board caucus the day before.
    • Presenting the CR-103, Hoffman reviewed a memorandum summarizing the project’s necessity, public comments, the specific new or amended rule sections, along with an implementation plan and criteria for evaluating the rule’s effectiveness. All of the changes applied to WAC 314-35 covering vapor products and relied on statutes in RCW 70.345. Hoffman noted that “since the legislation directing these rule revisions has been enacted, concern around” the safe use of vapor products had “increased significantly.”
    • Hoffman said WAC 314-35 offered a “limited regulatory framework around the manufacturing, distribution, and sales of [vapor] products.” Once adopted, the changes would raise the age of vapor (and tobacco) purchasing from 18 to 21; increase recordkeeping, transportation, licensing, denials, and insurance requirements for businesses; and establish suspension and revocation procedures. The rule allowed Enforcement greater authority to seize certain vapor products, would “establish forfeiture guidelines,” and setup a penalty structure which “aligns with current statute.”
    • Hoffman mentioned the CR-102’s public hearing on November 26th, its small business economic impact statement (SBEIS), and public comments submitted to the agency “largely related to the confusion that there seems to be over what these rules pertain to.” She reported directing those commenters to reach out to the SBOH instead. One comment addressed the rule set’s insurance requirement, however Hoffman reiterated that the “current estimated costs of requiring commercial liability insurance in this space is related to the necessary protection of public health and safety.” She concluded the requirement was “non-negotiable” given the nationwide influx of “hospitalized” VALI cases.
    • Hoffman then presented a Request for Board Adoption of Final Rules which was accepted without question or remarks. Hoffman said the CR-103 would be filed that day. Normally effective 21 days after filing, the rule’s timeline would be slightly accelerated, taking effect January 1st, 2020. Hoffman noted staff would continue monitoring various vapor related emergency rules passed by the Board in addition to SBOH’s emergency vape rules.
  • Five speakers voiced opinions and concerns during general public comment.
    • Don Skakie (audio - 4m, video). An activist from Renton, Skakie last addressed the Board on November 13th.
      • He began by commending the Board for appointing Lukas Barfield as the patient representative to the Cannabis Advisory Council, a new position which Skakie originally advocated for two years prior, including outreach in June with CAC consumer representative Bailey Hirschburg. “I look forward to that voice being added,” Skakie said, before evincing disappointment that only two patients had applied for the role despite “significant interest” he’d witnessed from the patient community. He felt this might reflect patients’ nearly non-existent role in agency policy making which affected them. Skakie was hopeful “that will change in the future.”
      • Speaking to the reduction in time granted to public commenters in the coming year, Skakie claimed “four minutes is pretty much the standard” at legislative hearings and state agency meetings “reduced as needed, rather than as a matter of policy.” He referenced the November 2013 Special Board Meeting on medical cannabis where “literally over 1,000 people showed up” and speaking time was necessarily reduced. Skakie observed contemporary board meetings were typically brief, rarely approaching their allotted two hours, and some speakers during the PAL hearing utilized their entire four minutes to make “vital” comments. He asked the Board to reverse their prospective policy change.
    • Peter Manning (audio - 3m, video). A former medical dispensary proprietor, Manning said he’d specialized in helping poorer patients of color in the south Seattle area and been targeted by local law enforcement “to make way for the white-owned retail shops that are there now.”
      • Manning raised the issue of discrimination by the agency in 2016.
      • In his testimony, Manning presented a “WSLCB Misconduct Report” by D Diamond Consulting specifically calling out Marijuana Licensing Supervisor Frank O’Dell whom Manning said was “clearly lying” in a sworn affidavit about his cannabis license application. Manning received “no response” when he’d brought his evidence to the agency’s attention and was unhappy to learn O’Dell may play a key role in the agency’s social equity effort. “This man affected a lot of black people’s lives,” Manning noted of O’Dell’s role in determining priority application statuses. He accused the agency of knowing this and claimed “nothing’s been done.”
      • Rushford told Manning she wanted to continue the discussion after the meeting when she’d learned more about his assertions. “That’s the same thing you did to me last time,” Manning responded, “you guys rushed everybody out of the boardroom, and then you guys took me to, whisked me off to a private corner and you calmed me down and you said ‘Oh, we’ll take care of this’ and nothing ever happened.” He challenged Rushford’s assurances of action, saying there was “no balance” and that “white people are here talking about how great this whole thing is for you, black people are here telling you there’s a problem.” Manning ended his comments accusing board members and Director Rick Garza of a “cover up.”
    • Aaron Barfield (audio - 5m, video). Speaking on behalf of Black Excellence in Cannabis (BEC), Barfield said he was working to increase “fair inclusion” for African American entrepreneurs in the 502 market.
      • Barfield voiced frustration seeing so much agency action “around the vaping issues and serving size” when “there’s 20 people who have actually been affected by [VALI]” compared to “hundreds, if not thousands of black people affected by the regulations that you guys are putting in place.”
      • He said that the misconduct report prepared for Manning had been presented to Garza and Director of Licensing Becky Smith on November 26th and that the agency lacked a “real position” on the situation. Barfield reported that subsequent requests for meetings or an official position from the Board on the misconduct claims went unanswered. The circumstances were "just another instance of how African Americans were treated" in Washington’s cannabis licensure process according to Barfield, who told the Board it was “not a coincidence” how few retailers were African American. It was an “embarrassment to the state,” he concluded, and a blemish on Washington’s experiment with legalization. 
      • At the conclusion of Barfield’s comments, Board Member Ollie Garrett clarified that O’Dell wasn’t involved in WSLCB’s social equity efforts: “that is not a true statement - at all.”
    • Micah Sherman (audio - 2m, video). Owner of Thurston County tier 2 producer/processor Raven, Sherman talked about a craft cannabis bill he was introducing with Representative Laurie Dolan and numerous stakeholders in government.
      • The legislation would create a new “craft cannabis production and processing license” and allow “small, independently owned” craft licensees to make direct sales to consumers. The bill would also establish an “advisory board of craft farmers” to work with WSLCB “to produce better and more effective rules for the craft portion of this industry.”
      • He claimed that “structural” constraints created by statute and rule had become “a big impediment to the success of small farmers.” He felt “the issues of scale, and consolidation, and market access” which his bill sought to address were also evident in the struggles for equity by communities of color.
      • Sherman encouraged people to reach out to him and visit  WashingtonCraftCannabis.org to learn more.
    • Crystal Oliver (audio - 2m, video). Oliver brought up the November robbery of Seattle producer/processor Puffin Farm, which Cannabis Observer covered during an Executive Management Team legislative discussion on December 4th. Oliver said the individuals who robbed Puffin Farm had targeted other licensees in that area. She was concerned that WSLCB’s Marijuana Dashboard featured an interactive map of cannabis producers and processors. Oliver argued that “there’s really no reason to have our locations displayed in that fashion” as it made it “too easy” for persons with malicious intent even if public records laws continued to make licensee addresses available. “I don’t think that it needs to be quite so easy” she said and asked the agency to remove the map.