Second Substitute Washington State Senate Bill 5052 2015 Regular Session
Proposed Draft Rules Comments
John Davis’ Version 1
Section 1- Title
Effective Date- 7/24/2015
Intent: Law descriptor. Provides intent that the act is to protect cannabis patients access to medicinal cannabis.
Rule change implied- None
Section 2- Preamble
Intent: Provides intent statement. It is the intent that patients be allowed to grow their own medicine but for the commerce to be regulated under the newly renamed Liquor and Cannabis Board.
Section 3- Renames the LCB
Intent: Changes the name of the Liquor Control Board to the Liquor and Cannabis Board.
Rule change implied- Clean up existing references to the Liquor Control Board.
Section 4- Adds Concentrates to RCW 69.50.101
Intent: This adds marijuana concentrates to definitions and adds some medical definitions to 101.
Rule change implied- A continuity check should be performed to ensure that marijuana concentrates are treated per definitions.
Section 5- Language clean up and exemption of 69.51a (medical) from penalties.
Intent- Exempts medical cannabis from penalty when all other laws are followed.
Rule change implied- None.
Section 6- Path to licensing.
Intent- This section allows for “good actors” in the medical marijuana business to get licensed under the LCB and to move patients seeking commercially produced medicine to the licensed retailers.
Rule change implied- The LCB must create a “merit based application process” that includes at a minimum experience and qualifications in the marijuana industry. 69.50.331(1)a clearly says that it will first weigh Experience and Qualification. It will then weigh “competing applications” in three “order(s) of priority. This seems to point to an aggregated merit/ specific experience scoring. The experience priority tiers are as follows:
First applicant priority considerations:
Second applicant priority considerations:
Third applicant priority considerations:
All previous restrictions in this section still apply.
Merit Based- (RCW 69.50.331(1)a) In order to conduct a “comprehensive, fair, and impartial” evaluation I recommend a numerical scoring system for each consideration. It would be good for the Governor to appoint a stakeholder group including; 502 industry, medical industry, industry groups, medical cannabis patients, law enforcement, localities and recreational cannabis consumers to give third party advice to legislators and the LCB in the promulgation of laws and rules. This would keep “merit based” definitions outside of the LCB and set up a scoring system that is straight forward for the use of LCB personnel.
Priority- (RCW 69.50.331(1)a(i-iii))I believe it is logical that it be up to the applicant to apply either as a “Priority 1” “Priority 2” or “Priority 3” application. I believe if that anyone can apply as any priority but if it is determined that they do not meet the criteria in the tier they applied in as established in RCW 69.50.331(1)a, it will be denied as non-responsive.
Experience and Qualifications- (RCW 69.50.331(1)a) As it is impossible to tell who is actually going to be working on the team if the team receives a license, I believe that only those listed as having 10 percent or more ownership stake in the corporate entity should be considered in determining both the Experience and the Qualification as far as personnel. The entity itself should be the main consideration in; length of time operating continuously in the industry (Experience) and the professionalism and structure of the entity (Qualification). To make it not incumbent on the LCB to investigate this, a submission should be made by the entity as a portion of the application process testifying to each.
The ability to “accommodate the medical needs of qualifying patients” is a key qualification. That language is in Section 8- Rulemaking (69.50.345(2)d). It says that the additional retail outlets are for the express purpose of accommodating “the medical needs of qualifying patients and designated providers.”
As the first qualifier as “Merit Based,” these should be scored against each other and given a rating of 1 to 10 based on the merit of each submission in both Experience and Qualification. It makes sense to make these submissions available to the general public for scrutiny and review. Intentionally misleading statements discovered in submissions should result in the loss of points. Details of this should be worked out with the Governor’s stakeholder’s group.
Applied- (RCW 69.50.331(1)a(i)a) Applicants that are the direct applicant or applicant entity that have applied before the July 1 date should be awarded 10 points. Applicants that do not demonstrate this in a priority 1 application should be deemed non-responsive.
Operated- (RCW 69.50.331(1)a(i)b) Intent must be considered in judging “operated or were employed by.” Were continuously operating businesses and those who could demonstrate that they ever held employment for even one day in a “collective garden” supposed to be weighted equally? How does one show that they were “employed by a collective garden” when collective gardens (2014 RCW 69.51a.085 repealed by 5052) were often very ad hoc?
Continuously operating and properly run organizations are those that it was the intent of the law to move into the Liquor and Cannabis Board licensing. These are also the easiest to demonstrate. Those organizations that pre-date Jan. 1, 2013 that operated a continuously operating brick and mortar medical dispensary previous to this date should be weighted stronger. I believe that these submissions that can prove through tax records that they were in operation and remitting taxes at that time to the Department of Revenue should be given 10 points. I think that those that are merely making a case that they were employed by a collective garden or cannot prove their existence through traditional means should be given a score of between 1 and 8 depending on the merit of the submission. Details of this should be worked out with the Governor’s stakeholder’s group.
Maintained- (RCW 69.50.331(1)a(i)c) An organization that can show a State business license in the cannabis category that has also had all applicable jurisdictional licenses for a storefront medical dispensary should be awarded 10 points providing that all of those original licenses pre-date January 1, 2013. Those that did not have all relevant business licenses do not meet the intent of 69.50.331(1)a(i) and should be treated as non-responsive in a priority 1 or 2 application. Those that have had lapses in licensing or were not appropriately categorized should submit an explanatory statement and be scored between 1 and 8 based on continual operation and subsequent compliance. Details of this should be worked out with the Governor’s stakeholder’s group.
Third Priority- Third priority applicants are weighted per 69.50.331(1)a only. These are judged solely through the merit of their submission on “experience and qualifications.”
Section 7- Rulemaking (general)
Intent- Clarifies rulemaking language especially regarding marijuana concentrates and adds medical to LCB oversight.
Rule change implied- Rules should be carefully checked to ensure that marijuana concentrates are treated the same as marijuana, usable marijuana and marijuana infused products.
Section 8- Rulemaking (procedures and criteria)
Intent- The changes in this section, beyond clean-up issues, is to increase the production and retail availability of cannabis intended for patients and to allow advertising so that patients can find convenient access.
Washington state has not had a medical marijuana registry, nor has it had any producer, processor or retailer licensing. Some patient access is very ad hoc. This makes determining anything about the number, usage habits or needs of the patient community very difficult. Therefore, it seems reasonable to conduct an independent survey of patients and medical retailers to see what information can be gleaned from that exercise. Compiling data and performing estimates may be best done by Rand.
The intent seems clear that the mandated “increase in limits” for producers should first be increased through currently licensed Producers using an increase in square footage of an existing facility. Even in this case, a Producer would have to apply for an increase in canopy. Existing producers should submit a plan detailing how the canopy size will be increased in the existing facility and detailing the square footage. They must also agree to use all new square footage to produce marijuana consistent with section 10.
All additional addresses or tax parcels should be new applications. “Priority in licensing must be given to marijuana producer license applicants who have an application pending on” April 24, 2015.
The intent of this section is to “accommodate the medical needs of qualifying patients and designated providers.” This needs to be the yardstick in any licensing. Does the applicant appear to do this?
Determination as to how many additional licenses will be needed must be done in conjunction to OFM. It seems logical that the number of new stores that are allowed should be around the same as medical dispensaries that exist as of passage of this act that are currently serving patients. Definition becomes very much needed if this yardstick is used. Cannabis is sold widely and in many places most having nothing to do with medicine.
It seems logical to work with the City of Seattle which recently conducted a census of marijuana dispensaries. They also were able to make some judgements on which they consider “legitimate”. This should give an idea of how many retailers are needed to support general population numbers.
Paragraph 9 item (d) says that the LCB must ensure “that retail outlets with medical marijuana endorsements may advertise themselves as medical retail outlets. Given the other “reasonable time, place, and manner restrictions and requirements” of 9, it seems that the intent of this is to just allow for advertising that is allowed now to indicate that the entity advertising identifies as medical retail outlet. Some additional sign or display on the storefront should be allowed to indicate that they retail medical marijuana.
Section 9- Retail Numbers
Rulemaking implied- None
Section 10- Medical Endorsements
Intent- To establish a medical marijuana endorsement that allows for retail shops to also sell medical cannabis to define what medical cannabis is and to promulgate rules to do this.
Rulemaking implied LCB
Rulemaking implied for the Department of Health
The LCB portion of the rules should be fairly non-controversial. It seems logical to include a stakeholders group. Again, it is recommend that the Governor appoint one.
The training element should just have training requirements and requirements on how one becomes a trainer. It should not be used to favor any one or few businesses or organizations.
The Department of Health rules can be very tricky. Are we talking about two separate systems in recreational and medical? Two completely different products? Two different registers? Two types of counter people?
That seems to be contrary to logic and to intent. The intent of 5052 from section 2 is “to ensure qualifying patients have a safe, consistent and adequate source of marijuana for their medical needs.” It is also stated that that the intent is that testing of medical products “meet or exceed those standards in use in the recreational market.”
The CCSE will give studies as will others that you cannot say that one cannabinoid is medical and that one is not. HC, CBD and the other cannabinoids are all useful and deserve further study. As a coalition of businesses that serve patients and that has for years, we have witnessed a wide variety of patients with a very diverse set of needs.
The intent statement also envisions the recreational consumer as having “safe, consistent, and adequate access to marijuana.” We certainly don’t want to have a system where either a patient’s or adult’s supply is better than the other.
It seems to solve a lot of problems to make the statement “If marijuana is medicine, then marijuana is medicine.” Have one, more diverse supply of products and cannabinoid ranges. The Department of Health would then not have to be in the awkward position of having to anoint ratios, strains or products that are “medicine.”
What I think it is incumbent on the DOH is to define what products can be sold as “low THC” or “High CBD.” It seems that a discussion on labeling is needed as well. Labeling that gives statements such as “tested for heavy metals” or “Non-BHO” may have a place in a product with therapeutic intent but could also be attractive to a recreational consumer.
Section 11-Very low THC products
Intent- It seems that the intent of this section is to allow for the sale of cannabis items (probably health and beauty aids) below .3 percent THC in 502 stores. Even as it is believed that this is the intent of the section, it is still oddly worded. Most things are below .3 percent THC. Cars are generally below .3 percent THC. Can they be sold?
Rulemaking implied- Change rules to allow for the sale of cannabis (including hemp) products in LCB licensed retail.
Recommendations- Given the language of this section the LCB could choose to view that licensed marijuana retailers could sell anything at their location. This report is going to assume that the intent of the section is to allow for cannabis products that are very low or no THC. Assuming this is the case, was the intent for just Health and Beauty Aids (HABA) or hemp in general to be provided? If that is the case, HABA would need clear definition.
We believe that logic and conservation of rulemaking trouble should rule. The rules should allow for any product that is hemp or has a hemp component under this section. There does not appear to be any compelling reason to make this more restrictive.
Section 12- Retail Restrictions
Effective Date- 7/1/2016
Intent- The intent of the changes of this section are to address persons below the age of 21 that hold a medical cannabis authorization and allow for their entry into a medically endorsed retail license holder. It mandates training of all personnel of a medically endorsed retailer. It allows for sales to patients between 18 and 21. It allows for medical endorsement language on a Retailer’s signage.
Section 13- Not Illegal
Intent- The intent of the changes in Section 13 is to make technical changes.
Rulemaking implied- None.
Section 14- CSA
Intent- The intent of the changes in this section is to clarify that underage possession is illegal and add an exemption for authorized patients.
Rulemaking implied- This should not affect the WAC
Section 15- Home concentrate production
Intent- The intent of this section is to not allow dangerous substances to be used in non-licensed extraction for personal use.
Section 16- Qualifying conditions
Intent- The intent of the changes in this section is to make technical changes and clarify language.
Section 17- Definitions
Intent- The intent of the changes in this section was to add or change definitions which has implications in many sections. The intent includes:
Rulemaking implied- A continuity check should be performed to ensure that the rules are up to date with the definitions
Section 18- Medical Providers
Intent- The intent of this section appears to be to provide higher metrics to patients and medical professionals to issuance of a medical marijuana recommendation.
Rules implied for the Department of Health:
Section 19- Medical marijuana amounts
Intent- The intent of this section is to provide plant and possessory limits to medical marijuana patients.
Rules implied- It will need to be considered what the recognition card will look like and how this information will be included on it.
Section 20- Medical treatment with marijuana with minors under the age of 18
Intent- The intent of this section is to allow for therapeutic use of marijuana for those under the age of 18 under tight controls.
Rulemaking implied- The DOH may choose to create rules or guidelines under this section.
Section 21- Secure authorization database
Effective Date- 4/24/2015
Intent- The intent of this section is to create and maintain a secure database to identify registered patients and designated providers. It’s confidentiality concerns seem to speak of making patients and designated providers confident enough to actually use the system.
The Department of Health must contract with an entity to create, administer and maintain the medical marijuana authorization database. The authorization database must at a minimum:
Section 22- Record exemption
Intent- The intent of this section is to exempt the records from the medical marijuana database from public disclosure
Section 23- Unlawful acts
Intent- The intent of this section is to create criminal penalties for unauthorized accessing the medical database, disclose information obtained from the database, produce a fake recognition card, designated providers to divert medicine obtained by the patient or for patients to share their medicine.
Section 24- Medical use is not a crime
Intent- To establish arrest and prosecution protection for the medical use and possession of marijuana if it is within established guidelines.
Rulemaking implied- Quantities and caveats are to be memorialized.
Section 25- Non-registered patient’s affirmative defense
Intent- To keep an affirmative defense in place for patient’s that choose not to be a part of the medical database.
Section 26- Cooperative grows
Intent- The intent of this section is to allow up to four (4) patients or designated providers who are registered with the medical database to collectively grow in one of the member’s “domicile” up to 60 plants if so authorized. This section is to allow for patients and designated providers to share resources and labor to produce their own medicine under the oversight of the liquor control board. It seems clear that the law wants to allow patients to take charge of their own medicine and to produce it themselves for quality and/or cost saving purposes.
Suggestions- As it is believed to be the intent of the law for patients to have a lower cost option for medical marijuana, it seems logical that cost of security and traceability systems should be affordable to a patient of limited means.
Section 27- Non-cooperative grows
Intent- The intent of this section is to close possible loopholes for non-LCB regulated home production. Fifteen (15) plants shall be the maximum in “one housing unit.” It also limits activity that may cause a neighbor nuisance situation. It allows for localities to create civil penalties for non-compliance.
Section 28- Non-licensed processing
Effective Date- 7/24/2015 Changes processing “Once the state liquor and cannabis board adopts rules”
Intent- The intent of this section is to restrict non-licensed processing of marijuana to only allow for “non-combustible methods. Clearly the intent here is to prevent fire and life-safety hazards.
Suggestions: Noncombustible might not be the best phrase in keeping with the fire/ life safety intent. The intent statement in section 2 talks of maintaining “adequate access” for patients. It clarifies that the act “intends to ensure that patients retain their ability to grow their own medicine for their own medical use and it intends to ensure that patients have the ability to possess more marijuana-infused products, useable marijuana, and marijuana concentrates.” Butter and cooking oils are in common use for oral preparations of cannabis.
Additionally, Section 15 paragraph 1 of this act says “Cooking oil, butter, and other nonexplosive home cooking substances may be used to make marijuana extracts for noncommercial personal use.” It seems to be logical that combustibility should be given a threshold so that common, household infusion can still happen using butter and cooking oils.
Section 29- Over the limits
Intent- The intent of the changes in this section is to make some housekeeping language clarifications and to clarify that concentrates and infused products are included in the language.
Rulemaking implied- A continuity check should be performed to make sure that concentrates and infused products are included where needed.
Section 30- Affirmative defense limitations
Intent- The intent of the changes in this section are language housekeeping in nature.
Section 31- Civil penalties and limitations
Intent- The intent of the changes in this section was language housekeeping and to allow for schools to permit minors that require marijuana as therapy to consume their medicine on school grounds and to clarify that this act does not apply on federal property.
Rulemaking implied: The LCB may clarify the school policy in the rules
Section 32- Collective Gardens
Intent- In conjunction with section 49 and 51 this section is to take effect immediately and then be repealed on July 1, 2016. This is a stop-gap measure to provide patients with a chance to move over to the new system and to allow for access before the rules can be promulgated. The intent of the changes in this section are to immediately stop access to patients or caregivers under the age of 21 from the current “collective garden” system which includes many types of entities currently including dispensaries.
Rulemaking implied: The law needs to be memorialized in the WAC.
Section 33- Controlled purchase program
Intent- The intent of this section is to allow for LCB and in-house controlled purchase programs to ensure compliance in regards to sales to minors.
Rulemaking implied- The LCB should promulgate rules regarding LCB and in-house controlled purchase programs
Section 34- Designated providers
Intent- The intent of the changes in this section is to clarify the role and definition of a designated provider, revocation procedures and to acknowledge the role of the new database program.
Rulemaking implied- The Department of Health “may adopt rules to implement this section” including a procedure to remove a designated provider.
Section 35-Health care professionals sales of under .3 percent THC products
Intent- The intent of this section is to allow health care professionals to sell or otherwise distribute topical products under .3% THC to qualifying patients.
Rulemaking implied- The DOH may promulgate rules under this section
Section 36- Vetoed
Section 37- Medical marijuana consultant
Intent- The intent of this section is to create a “medical marijuana consultant” certification to allow for retail employees to help patients with medical conditions and to give authority over the program to the Secretary of the Department of Health. This “may” establish training and criminal background. This will give certificate holders the ability to interact with medical cannabis patients and designated providers in a way that may be contrary to the rules of the LCB.
The Secretary of the DOH may:
“The secretary shall specify those situations where a state background check is inadequate” which may include:
“Establish administrative procedures, administrative requirements, and fees in accordance with RCW 43.70.110” 43.70.250.
“Maintain the official department record of all applicants and certificate holders.”
Enact “A training or education program approved by the secretary must include the following topics:”
Enact rules on renewals
Enact rules on suspensions, refusals or revocation of certification
Enact rules on services provided by consultants
Enact rules on who must have a certification
Section 38- Continuing medical education
Intent- The intent of this section is to allow for education for medical practitioners through continuing education.
Rulemaking implied- “The board of naturopathy, the board of osteopathic medicine and surgery, the medical quality assurance commission, and the nursing care quality assurance commission shall develop and approve continuing education programs related to the use of marijuana for medical purposes for the health care providers that they each regulate that are based upon practice guidelines that have been adopted by each entity.”
Section 39- Health professions account
Intent- The intent of this section is to pay for the costs incurred by the database implementation and administration to be paid by the Health professions account.
Section 40- Tax preferences
Intent- The intent of this section appears to exempt cannabis entities from tax deduction and preferences.
Section 41- Medical marijuana specialty clinics
Intent- The intent of this section is to research medical marijuana specialty clinics that allow for authorizations and dispensing to happen at the same place.
Rulemaking implied by the Department of Health: “The department of health must develop recommendations on establishing medical marijuana specialty clinics that would allow for the authorization and dispensing of marijuana to patients of health care professionals who work on-site of the clinic and who are certified by the department of health in the medical use of marijuana.”
“Recommendations must be reported to the chairs of the health care committees of both the senate and house of representatives by December 1, 2015.”
Section 42- Vetoed
Section 43- Vetoed
Section 44- Vetoed
Section 45- Vetoed
Section 46- Vetoed
Section 47- Change to Liquor and Cannabis Board
Intent- The intent of this section is to find and replace all references to the Liquor Control Board to the Liquor and Cannabis Board.
Rulemaking implied- “The code reviser must prepare legislation for the 2016 legislative session changing all references in the Revised Code of Washington from the Washington state liquor control board to the Washington state liquor and cannabis board.”
Section 48- Repeal of Sections
Intent- The intent of this section is to repeal sections that are deemed irrelevant or redundant.
Section 49- Repeal of collective gardens
Intent- The intent of this section is to sunset collective gardens on July 1, 2016.
Section 50- Sections to be enacted on July 1, 2016
Intent- The intent of this section is to enact some provisions in the future to allow for rulemaking and sunsetting. Sections 12, 19, 20, 23, 24, 25, 26, 31, 35, 40, 49.
Section 51- Sections to take effect immediately
Intent- The intent of this section is to enact some provisions immediately that are thought to be important to implement immediately. Sections 21, 22, 32, 33.
For the past 20 years, John Davis has fought in the trenches and with his wallet and business interests (not to mention sticking his neck out nationally!) to work diligently to end prohibition in his home state, Washington and on a national level. In addition to being the Chairman of Seattle Hempfest, John is a founding member of the Coalition for Cannabis Standards and Ethics, a board and founding member of the NCIA and a leading policy expert working on international cannabis policy reform.
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