Governing through Emergency

Yesterday, I petitioned Governor Inslee to repeal the emergency rule filed last week by the Washington State Department of Health negating the requirement that Heavy Metals testing be required for product to be considered worthy of “Medical Grade” product certification. While I am disturbed at the misuse of emergency rule-making authority this action represents, I am worried about the damage it is doing (and will do) to the “brand” or image of DOH Medical Grade product certification. It is not as if the rollout of regulated medical cannabis in Washington needs yet another nail in it’s coffin.

The Governor has until next week to respond to the petition. If you feel strongly that our government agencies should not be allowed to abuse emergency rule-making authority in what appears to be an effort to limit public input and transparency, please let the Governor know (by leaving an e-message at this link, or by calling his office at 360-902-4111).

Here is the text of my petition:

From: Dr. James MacRae       Thur., Jan 31, 2019 2:59 pm                                                                                                             
To: Governor Jay Inslee

Petition requesting the immediate repeal of Rule WSR 19-04-010, adopted on an emergency basis by the Washington Dept. of Health on Jan 24, 2017 (filed 16:36h as WSR 19-04-010)

My primary challenge is to the use by DOH of the emergency rule-making process in a non-emergent situation.  It also appears that the rationale the DOH has used to justify the need for this rule is vacuous and that the effect of the enacted rule will be to cause direct harm to consumers of “Medical Grade” cannabis in Washington numbering in the thousands.

In announcing the adoption of this rule, the DOH stated that:

“The intent of this suspension is to allow producers and processors to continue creating product compliant with department regulations and to inform consumers.”

The rule responds to the unfortunate fact that the only remaining lab certified by the LCB to test for Heavy Metals is ceasing their involvement in the LCB-regulated cannabis testing market at the end of business today.   Had this “emergency” rule not been crafted, filed and adopted, no newly-produced products would have been able to pass the additional consumer-safety-oriented requirements for DOH certification as “medical grade”.

By eliminating this requirement, the DOH appears to believe that it has addressed the problem.  Jessica Todorovich is clear, in her submission, that this emergency action was taken on the agency’s own initiative.

This issue is NOT emergent.

During a series of meetings between the DOH, the WSLCB and various patient and medical care-giver stakeholders that occurred during the spring and summer of 2018, the fact that the only laboratory certified for testing heavy metals (per the DOH MMJ-Compliant product standard) planned to leave the market in September of 2018 was raised with the LCB and DOH.

The short-term “fix” was to extend that lab’s certification for testing heavy metals (and pesticides) for 4 months and to work to ensure that the gap would be filled by another lab building the capability and getting certified to fill the gap.

It has been clear since at least August of 2018 that the alleged “emergency” that the DOH responded to in filing WSR 19-04-010 was coming and that it’s due date was tomorrow.

For the DOH to have allowed almost 6 months to have elapsed without instituting an orderly rule-making process to address this issue is somewhat confusing.  It is also disappointing.

When the issue of “no certified labs” for testing heavy metals arose during our joint discussions last summer, I was clear with the DOH that any option that so degraded the “DOH-Certified Medical Grade” brand for medical marijuana was very problematic and should be avoided at all costs.

I would argue, Governor Inslee, that allowing the flow of “DOH-Certified Medical Grade” product to the shelves of regulated retail access points to stop is better than to allow the flow of product labelled as “DOH-Certified Medical Grade” to continue to the market without having been required to pass the Heavy Metals screening tests that have been in place for such product over the past 31 months.

Removing a requirement that addresses a public safety concern (heavy metals ingestion by medical cannabis patients using “DOH-Certified” product) and attempting to mitigate that action by adding a label that the product “has not been tested for heavy metals” is both harmful to patients and to the acceptance of regulated medical cannabis by the medical cannabis community in Washington.

By EVERY measure, 30 months into the implementation of the Patient Protection Act, the regulated cannabis system has failed those Washingtonians that choose to incorporate cannabinoids into their medication / supplement regimes.

Two years in, less than 2% of product sold at retail is to patients being served as patients (e.g., sales-tax-exempt transactions).   Less than 2% of product produced is certified as “DOH Medical Grade”.  Fewer than 40% of retail access points are recognized by the DOH as being able to serve medical patients as patients.  Fewer than 5% of wholesalers are producing and/or processing any “DOH Medical Grade” product at all.

This is in the context of a market that was assessed in 2013 (by BOTEC, under contract by the LCB) as having over 1/3 of it’s consumers using for medical purposes.  At the time, that amounted to an estimated 250,000 medical marijuana users in Washington.

As recently as December, the DOH presented to the Legislature that there were some 15,500 patients that had registered in their patient registry.  My inspection of the data they have released suggests that the actual total of currently-active patients is less than 9,000.  Regardless, these both represent only a small fraction of MMJ users identified in 2013 by BOTEC.

Those patients, for the most part, have not gone away.  They have also, for the most part, not stopped using cannabis as medicine.

“Emergency” rule WSR 19-04-010 further damages the DOH Medical Grade logo and brand and gives additional reason for Washington patients to avoid the regulated cannabis marketplace.

I also have strong concerns that the removal of one of the two factors that define “DOH – Certified Medical Grade Product” as safe in the minds of consumers will further damage that brand and further de-value the system enabled by the Patient Protection Act to both patients and to the dwindling number of operators supplying their medical cannabis needs.

The inept rollout of regulated medical cannabis by the WSLCB and the DOH is something that history will view as an embarrassment on Washington’s seminal efforts toward regulating state-legal cannabis.

Please repeal WSR 19-04-010 at your earliest convenience and, if possible, direct the DOH (and LCB) to begin putting patients first in their decision-making as it relates to the implementation of the Patient Protection Act.

If you need any data, details, or further clarification on this request, please feel free to reach out to me. I have no financial interest in giving this testimony.  I simply hate seeing poorly executed bureaucracy so consistently harming it’s constituents.