Understanding Washington’s New Emergency Rules

[dropcap class=”kp-dropcap”]T[/dropcap]he Washington Department of Health (DOH) recently issued emergency medical cannabis rules. These rules were promulgated as part of the Medical Cannabis Patient Protection Act, which brings medical cannabis under the authority of the Washington State Liquor and Cannabis Board (LCB) and DOH beginning on July 1, 2016. The DOH appears to have adopted a broad interpretation of what the term “medical marijuana” means. Essentially, it’s going to be patient’s choice when it comes to what “medical grade” cannabis is.

“At this time, the decision of what marijuana products may be beneficial is best made by patients in consultation with their health care practitioners. For this reason, the department will not limit the types of products available to qualifying patients. Instead, the department intends to create standards for products that any consumer can rely upon to be reasonably safe and meet quality assurance measures.”

Most importantly, these emergency rules are effective immediately. Under Washington law, when an agency files emergency rules, those rules go live when filed if they are necessary for the “preservation of the public health, safety or general welfare.” In filing these rules, the DOH’s reasoning for their emergency status is due to the fact that the LCB started accepting applications from potential medical cannabis retail distributors on October 12, and those applicants cannot sell medical cannabis without DOH guidance. The DOH is currently seeking public comment on these emergency rules and they are, as always, subject to change.

The emergency rules create a new category of “compliant marijuana products,” which, in turn, have three subcategories: general use, high THC and high CBD. General use compliant products contain less than 10mg of THC per serving, with no more than 10 servings per unit. High THC compliant products contain between 10-50mg of THC per serving. Each unit may not contain more than 10 servings. High THC compliant products may be sold only to qualified patients or designated providers. High CBD compliant products must meet one of the following ratios: (1) Marijuana concentrates with less than 2 percent THC and 25 times more CBD concentration by weight; (2) Edible products with less than two milligrams of THC and at least five times as much CBD per serving by weight for solids or volume for liquids; or (3) Topicals containing five times more CBD than THC concentration.

The rules also establish a process for testing cannabis for pesticides and heavy metals. Testing will be required for all parts of the cannabis plant. The minimum sample size for testing is three grams per three pounds. With respect to labeling, the emergency rules prohibit products from using words, symbols or images commonly used in the medical or pharmaceutical industry. For example, labels cannot include the words “prescription” or “RX.” The labels must also prominently display the following statement: “This product is not approved by the FDA to treat, cure or prevent any disease.”

The emergency rules also require standards for safe product handling. All processing facilities must maintain clean and sanitary conditions through each stage of cannabis handling. This includes promoting personal cleanliness, regular and thorough hand washing and prohibiting employees or volunteers from handling cannabis when they are ill.

Finally, the emergency rules require specific training for employees. Employees must be trained to identify valid medical cannabis authorizations and state IDs and must learn to enter information into the state’s voluntary medical cannabis database. Employees are also required to learn to adhere to confidentiality requirements regarding medical cannabis patients. Additionally, employees are to be trained about the science behind cannabinoids, including concentrations of CBD and THC, in order to assist patients and designated providers at retail stores.

These rules will require careful compliance from cannabis businesses and all interested stakeholders should keep a close eye on how these rules develop and change, as they are sure to change again as the new medical-recreational hybrid marketplace rolls out.