BREAKING NEWS: Washington State Issues Emergency Medical Marijuana Rules

Washington State’s medical marijuana rules continue to rapidly change. The Washington Department of Health (DOH) just this week issued emergency medical marijuana rules. These rules were promulgated as part of the Medical Cannabis Patient Protection Act, which brings medical marijuana 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” marijuana 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.

With a few distinct new additions to our state’s marijuana regulatory system, the emergency ultimately build upon existing LCB regulations for marijuana producers, processors, retailers, and third-party labs.

Emergency Medical Marijuana Rules issued in WAMost 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 will start accepting applications from potential medical marijuana retail distributors on October 12th, and those applicants cannot sell medical marijuana 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 10 milligrams of THC per serving, with no more than ten servings per unit. High THC compliant products contain between 10 and 50 milligrams of THC per serving. Each unit may not contain more than ten 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% 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 marijuana for pesticides and heavy metals. Testing will be required for all parts of the marijuana plant. The minimum sample size for testing is three grams per three pounds. The DOH, in conjunction with the LCB and the Department of Agriculture, will create and maintain a list of prohibited pesticides. The rules do not require terpene analysis, but they do prohibit adding synthetic or artificial terpenes to a product and they also require that companies making claims about the amount of terpenes in a product provide a third-party lab analysis to support those claims.

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 marijuana handling. This includes promoting personal cleanliness, regular and thorough hand washing, and prohibiting employees or volunteers from handling marijuana when they are ill.

Finally, the emergency rules require specific training for employees. Employees must be trained to identify valid medical marijuana authorizations and state IDs and must learn to enter information into the state’s voluntary medical marijuana database. Employees are also required to learn to adhere to confidentiality requirements regarding medical marijuana 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 marijuana 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.