Update on Washington State Department of Agriculture Rule Making WSR 21-15-098

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[authors: Danica Paddock and Chris Girard]

Pre-Proposal Statement of Inquiry | WSR 21-15-098

Thus far, the Hemp Industry has primarily been an open market. As such, the main concern of Cannabis regulators has been to focus primarily on THC content, Isomers of Cannabinoids. The lack of knowledge in this plant and the lightspeed evolution of the science of the plant has led to an even larger issue: a lack of guidance on manufacturing practices for those in the Hemp Industry. As such, there remains a serious gap to ensure that companies are adequately conforming to health and safety standards in their manufacturing processes. While licensure is not always the answer to these problems, many states are now looking to create a regulatory licensing framework that allows for Hemp extractors to become certified in these compliance projects. Washington recently released a Pre-Proposal Inquiry Statement, which pertains to this new hemp extract certification program.

Pursuant to recently enacted legislation (ESB 5372, chapter 104, Laws of 2021), the Washington State Department of Agriculture is implementing, by rule, a voluntary program that would allow for the certification of hemp extract. ESB 5372 defines hemp extract as “a substance or compound intended for human ingestion that is derived from, or made by, processing hemp.” The program intends to 1) develop and define the steps necessary for a hemp processor to gain certification for their compliance with Washington State’s inspection, sanitation, and manufacturing requirements and 2) establish the cost-recovery fees necessary for the State to administer the program itself.

Although hemp extract is currently prohibited by both the Food & Drug Administration and Washington State from being used as a food ingredient, many other states already allow for this usage. While this program does not allow for hemp extract to be used as a food ingredient in Washington State, the program would allow for hemp processors that manufacture hemp extract to sell that extract in states which already permit its use as a food ingredient. The program’s goal is to ease and encourage interstate shipments of hemp extract and to ensure that Washington State’s manufacturers of hemp extract are adequately licensed and registered pursuant to the regulatory requirements of other States.

Potential amendments to the legislation will be discussed by the Department of Agriculture with relevant stakeholders who will have the opportunity to submit comments on the rule as well as present their oral testimony at the public hearing on the subject. This program and rulemaking is still on the runway. The result will have a major impact on the State’s newest generation of farmers We will be following this closely, so check back in to see how this all unfolds.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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