Opposition To Any New Mandatory Warning Symbol for Cannabis Products in the State of Washington

PETITION IN OPPOSITION TO
ANY NEW MANDATORY WARNING SYMBOL FOR CANNABIS PRODUCTS
IN THE STATE OF WASHINGTON


Prepared and promoted by the Cannabis Farmers Council

The Executive Board of the Cannabis Farmers Council unanimously approved the circulation of this petition to bring to the attention of the WSLCB the widespread opposition to any mandatory warning label in any form on edibles or any other cannabis product.

On June 15, 2016, the Washington State Liquor and Cannabis Board (“WSLCB”) published a Preproposal Statement of Inquiry (CR-101) that it is “considering rule changes to establish a warning symbol for placement on marijuana products”. This is a preliminary step to issuing draft language of a proposed rule, now scheduled for August 10.

The proposal, in fact, is very specific and is backed primarily by the Washington Poison Center (“WPC”), a private nonprofit organization. The WPC was also the proponent of the unsuccessful attempt to mandate Mr Yuk labels on all cannabis edibles earlier this year.

The gist of the proposal is to mandate placement of a certain trademarked image on some or all cannabis products (most likely edibles, at least initially). The chosen symbol was designed specifically for this initiative of the WPC, and is not being promoted by the WPC on placement of any other type of product, edible, potable, medicinal, or otherwise.

The proposed image has been widely broadcast and circulated by the WPC, and the Chair of the WSLCB has gone on record as commending the WPC for its efforts. The WPC has made several statements to the effect that a proposed written rule will be issued by the WSLCB on August 10, although the WSLCB must determine it is in the public interest to do so after a period of public comment which ends on that same date.

While no language of the proposed regulation has been revealed, it is anticipated that the label may be in the form of a sticker (rather than preprinted on packaging), that minimum dimensions of the label will be established (using up precious packaging area, and perhaps requiring larger packages to accommodate), and that since the image is trademarked some fee for its use, either directly or indirectly, will be charged (imposing more costs on all licensees as well as consumers).

There are other reasons to oppose this measure, but increased cost alone (unhappily combined with a wholly ineffective idea) is incentive enough for every licensee and consumer to voice their opposition. Our position, as explained in greater detail below, consists of the following points:

1. The methodology of this proposal is simply ineffective, and will not serve its intended purpose;

2. Adequate safeguards and warnings, including child-resistant containers on most edibles, already exist;

3. The actual risks of cannabis are scientifically proven to be far lower than many everyday substances, including common over-the-counter medications and even some common food crops, to say nothing of other controlled substances such as alcohol and tobacco. Not only is cannabis relatively safe, from a life-risk perspective it is essentially absolutely safe. Cannabis has no measurable toxicity level. There are no known deaths caused by an “overdose” of cannabis. As a practical and clinical matter, the risk of fatality from overconsumption of cannabis approaches absolute zero. There is no rational basis to single out cannabis as deserving of a special “red hand” warning.

4. The WPC cites alarming statistics about the increasing number of calls it has received reporting cannabis-related problems, but the data should be viewed skeptically. Cannabis use remains controversial, and some remain fiercely opposed to it. Anti-cannabis zealots have already been caught “gaming the statistics game” in other contexts by filing spurious and trifling complaints. There is a high probability that some of the calls made to the WPC were more artifice than emergency.

5. If the WSLCB determines to go forward with a warning label along the lines suggested by the WPC, then a Small Business Economic Impact Statement (“SBEIS”)must be prepared in accordance with RCW 19.85, since implementation of the proposed rule will impose more than minor costs on businesses in an industry.

The newly proposed changes will have drastic impacts on the cannabis community, especially Producers and Processors of every Tier.

There will be a public hearing on August 10, 2016, starting at 10:00 a.m. at the WSLCB Board Room, 3000 Pacific Avenue, S.E., Olympia, WA. We encourage you to attend and present your views to the WSLCB. The WSLCB has proven time and again that they are listening to and considering the perspectives of all stakeholderts in this new industry. We urge you to let your voice be heard together with like-minded licensees and consumers by signing this petition.

Our aim is to gather as many endorsements of this petition as possible, to bring our collective opposition to this proposal to the WSLCB.

If you support this view, we ask you to indicate your endorsement by electronically signing this petition. We will forward the signed petition to the WSLCB prior to the public hearing on August 10.

PETITION

THE UNDERSIGNED take notice of the Pre-Proposal Statement of Inquiry contained in the CR-101 dated June 15, 2016, which advises of a possible rule making to establish “a warning symbol for placement on marijuana products”.

THE UNDERSIGNED recall that earlier this same year, a very similar initiative (Mr Yuk) was brought forward by the same proponent of this new symbol and that such proposal was withdrawn after strenuous opposition was voiced by cannabis licensees of all classes and tiers as well as consumers and other supporters of the industry, including a petition objecting to Mr Yuk (among other issues) that raised over 400 signatures representing at least some 250 licensed Producers in just several days;

THEREFORE, THE UNDERSIGNED, for all of the reasons stated below, petition the WSLCB to reject the proposal of a new warning label due to its inherent inefficacy and superfluity, combined with the significant financial & administrative burdens it would bring.

1. Methodology is ineffective, and will not serve its intended purpose.

At a minimum, a third-party proponent of a rule in any regulatory context should be required to make a showing that the proposed measure will actually be effective in achieving the stated purpose of the rule. In this case, there has been no such showing.

There is no study or empirical evidence, or any basis in logic, to believe that in the real world a child will be dissuaded by a paper sticker.

Unless the WPC can produce some credible evidence that its proposal will actually work, the WSLCB should reject out-of-hand any such measure. Without some threshold showing of probably efficacy, the proposal should not be seriously entertained.

2. Adequate safeguards and warnings already exist.

The proposal must be seen in context. We note the following:

• “Marijuana-infused products that are especially appealing to children are prohibited. Marijuana-infused edible products such as, but not limited to, gummy candies, lollipops, cotton candy, or brightly colored products, are prohibited.” (WAC 314-55-077(7))

• All cannabis advertising and labels of usable cannabis, cannabis concentrates, and cannabis-infused products are prohibited from containing any statement, or illustration that:

◦ Depicts a child or other person under legal age consuming cannabis;

◦ Includes objects, such as toys, characters, or cartoon characters suggesting the presence of a child, or any other depiction designed in any manner to be especially appealing to children or other persons under legal age to consume marijuana; or

◦ Is designed in any manner that would be especially appealing to children or other persons under twenty-one years of age. (WAC 314-55-155(2)(d))

• Individual servings of cannabis-infused edibles packaged together “must be packaged individually in childproof packaging” (See, WAC 314-55-105(7))”.

• All cannabis and cannabis products must include accompanying material attached to the package or given separately to the consumer at the time of sale containing various warnings including: "For use only by adults twenty-one and older. Keep out of reach of children";

• All advertising must also include the words, “ For use only by adults twenty-one and older. Keep out of reach of children”. (WAC 314-55-155(6)(d))

• The label on all solid and liquid edibles must prominently display the words, “This product contains marijuana”. (WAC 314-55-077(5)(d) and (6)(d))


3. Cannabis is relatively safe, and from a life-risk perspective it is essentially absolutely safe.

It is, or by now should be, common knowledge that cannabis is not like any other Schedule 1 Controlled substance in that its level of toxicity is so low as to be virtually undetectable.

Perhaps the best-documented and most conclusive determination of this issue is found in the legal opinion of a DEA Administrative Law Judge in 1988 in his Findings of Fact in an exhaustive opinion of 69 pages that, among other things, reviewed the medical evidence regarding the health risks of cannabis. [In the Matter of Marijuana Rescheduling Petition, Docket No. 86-22, Opinion and Recommended Ruling, Findings of Fact, Conclusions of Law and Decision of Administrative Law Judge (Francis L. Young), September 6, 1988. The entire opinion can be found at <http://medicalmarijuana.procon.org/sourcefiles/Young1988.pdf> or <https://www.erowid.org/plants/cannabis/cannabis_law1-1.shtml>]

Just a few of the verbatim findings of the judge in that case are enough to make the point:

3. The most obvious concern when dealing with drug safety is the possibility of lethal effects. Can the drug cause death?

4. Nearly all medicines have toxic, potentially lethal effects. But marijuana is not such a substance. There is no record in the extensive medical literature describing a proven, documented cannabis-induced fatality.

5. This is a remarkable statement. First, the record on marijuana encompasses 5,000 years of human experience. Second, marijuana is now used daily by enormous numbers of people throughout the world. . . . Yet, despite this long history of use and the extraordinarily high numbers of social smokers, there are simply no credible medical reports to suggest that consuming marijuana has caused a single death.

6. By contrast aspirin, a commonly used, over-the-counter medicine, causes hundreds of deaths each year.

7. Drugs used in medicine are routinely given what is called an LD-50. The LD-50 rating indicates at what dosage fifty percent of test animals receiving a drug will die as a result of drug induced toxicity. A number of researchers have attempted to determine marijuana's LD-50 rating in test animals, without success. Simply stated, researchers have been unable to give animals enough marijuana to induce death.

8. At present it is estimated that marijuana's LD-50 is around 1:20,000 or 1:40,000. In layman terms this means that in order to induce death a marijuana smoker would have to consume 20,000 to 40,000 times as much marijuana as is contained in one marijuana cigarette. NIDAsupplied marijuana cigarettes weigh approximately .9 grams. A smoker would theoretically have to consume nearly 1,500 pounds of marijuana within about fifteen minutes to induce a lethal response.

9. In practical terms, marijuana cannot induce a lethal response as a result of drug-related toxicity.

10. Another common medical way to determine drug safety is called the therapeutic ratio. This ratio defines the difference between a therapeutically effective dose and a dose which is capable of inducing adverse effects.

11. A commonly used over-the-counter product like aspirin has a therapeutic ratio of around 1:20. Two aspirins are the recommended dose for adult patients. Twenty times this dose, forty aspirins, may cause a lethal reaction in some patients, and will almost certainly cause gross injury to the digestive system, including extensive internal bleeding.

* * *

14. By contrast, marijuana's therapeutic ratio, like its LD-50, is impossible to quantify because it is so high.

15. In strict medical terms marijuana is far safer than many foods we commonly consume. For example, eating ten raw potatoes can result in a toxic response. By comparison, it is physically impossible to eat enough marijuana to induce death.

16. Marijuana, in its natural form, is one of the safest therapeutically active substances known to man. . . .

17. There have been occasional instances of panic reaction in patients who have smoked marijuana. These have occurred in marijuana-naive persons, usually older persons, who are extremely anxious [about medical or legal considerations] . . . .

18. Other reported side effects of marijuana have been minimal. Sedation often results.

Sometimes mild euphoria is experienced. Short periods of increased pulse rate and of dizziness are occasionally experienced. Marijuana should not be used by persons anxious or depressed or psychotic or with certain other health problems. . . .

* * *

While no responsible person in the cannabis community would encourage or even allow children to consume or be secondarily exposed to cannabis, the facts are indisputable that the risks associated with accidental or ill-advised consumption, or even over-consumption, are relatively minor and temporary, and are not life-threatening in any material way.

Given that a fatal overdose is practically (and maybe absolutely) impossible, WPC's proposal begins to look like a solution in search of a problem. If a warning label is thought to be so effective, it is fair to ask why such a symbol has not been, and is not being, promoted for labeling on many other, much more toxic, everyday substances. The minimal risks of accidental cannabis consumption, even by children, simply cannot be compared to the potential lethal effects of the likes of alcohol, aspirin, and, we learn, even raw potatoes.

4. WPC statistics may be open to question, and may well significantly overstate true cannabis
episodes .

The WPC cites alarming statistics about the increasing number of calls it has received reporting cannabis-related problems, but the data should be viewed skeptically. Cannabis use remains controversial, and some remain fiercely opposed to it. Anti-cannabis zealots have already been caught “gaming the statistics game” in other contexts by filing spurious and trifling complaints. Given the tactics sometimes used by cannabis opponents, we believe there is a reasonably high probability that some of the calls made to the WPC were more artifice than emergency.

As an example, in a paper submitted to the Spokane Clean Air Agency on May 23, 2016, Crystal Oliver (who serves on that agency's Marijuana Advisory Committee and is also a member of the Executive Board of the Cannabis Farmers Council) was able to establish that nearly one-half of the 107 complaints (54, to be specific) received by Spokane Clean Air were associated with a single grower whose neighbors have carried out a coordinated campaign to harass and inconvenience the grower. In the course of numerous on-site visits by compliance officers of Spokane Clean Air, on only one occasion did the officers “believe” they smelled cannabis aroma off-site. In that single case, however, the odor was detected only after the agents had entered the premises, walked through the greenhouse, and exited the premises, leading to a very real likelihood that what they detected was plant odor clinging to their own clothing.

If the WSLCB is basing its decision in part based upon the representations of the WCP regarding the “alarming increase” in the number of cannabis-related calls they are receiving, then it should be made to produce whatever documentation exists in respect of those calls.

5. If the WSLCB decides to go forward with this proposal, then an SBEIS under RCW 19.85 must be prepared.

The true costs of implementing a warning label proposal cannot be reasonably estimated until the details of the implementation of the rule are made known. Nonetheless, it is clear that the costs to licensed Processors will most certainly be “more than minor”. Many Processors purchase preprinted labels and packaging material in bulk to minimize costs. Much of that packaging could be rendered obsolete and illegal for retail use because there is no room to affix a new, unanticipated (and redundant) warning label. Since most cannabis retail packaging is already crammed with existing warnings and other notices required under current WSLCB rules, virtually all Processors would be required to redesign their packaging (at their own cost) and/or source new over-sized packaging used (increasingtheir costs) merely to create more space to accommodate this label (thereby creating environmental waste and its attendant costs).

RCW 19.85 is especially concerned with “disproportionate impact on small business” and where found the agency is obliged to “reduce the costs imposed by the rule on small businesses”. To do so, the agency is required to consider each of the following methods of reducing the impact of the rule on small businesses:

(a) Reducing, modifying, or eliminating substantive regulatory requirements;

(b) Simplifying, reducing, or eliminating record-keeping and reporting requirements;

(c) Reducing the frequency of inspections;

(d) Delaying compliance timetables;

(e) Reducing or modifying fine schedules for noncompliance; or

(f) Any other mitigation techniques including those suggested by small businesses or small
business advocates.

A significant regulatory change in packaging requirements for companies involved in the food and beverage industry normally extends a grace period to achieve compliance of up to a year or two, precisely because doing so is so extraordinarily disruptive to the packaging process. As part of a thorough SBEIS examining the economic impact on small cannabis Processors, the WSLCB should consider a much longer lead time than is currently expected to compel full compliance. 

It bears repeating that a threshold test for any proposed new rule should and must be that the rule is likely to accomplish its stated objective. In preparing the SBEIS, a critical issue will be to balance the benefit against the cost to be imposed on small business. In this case, that determination can be made a priori since no real benefit even exists that can counterbalance the attendant costs.