UPDATE: Please see this post for an important update to this issue.

The Washington Department of Health (“DOH”) held a public meeting on October 9 where they discussed Governor Jay Inslee’s recent executive order requesting that the DOH adopt emergency rules banning flavored vapor products, including flavored cannabis vapor products, and voted to adopt an emergency rule banning the products. The new rules use a defined term for “characteristic flavor,” which is used to distinguish permissible vapor products from impermissible ones. These rules will significantly affect the cannabis industry, but it is important to note that the rule does not amount to an outright ban of all cannabis vapor products.

In the Wake of an Outbreak

This flurry of government activity comes in the wake of an outbreak of illnesses and deaths across the United States related to vaporizing, and numerous other states have issued bans of their own. DOH’s stated reason for adopting the emergency rules is concern for public health and protecting youth:

The State Board of Health’s Health Impact Review of HB 1932 found strong evidence that prohibiting the sale of flavored vapor products will likely decrease initiation and use of vapor products among adolescents and young adults. Reducing the initiation and use of vapor products by youth and young adults will reduce the exposure of our most vulnerable population to the current outbreak of severe lung disease associated with the use of vapor products.

The cause of the outbreak has yet to be determined. While reducing youth use of vapor products is a legitimate goal, the ban is questionable if the recent illnesses are in fact found to be a result of substances other than flavoring, or the ban does not reduce overall consumption rates. The DOH emergency rules cite the 2018 Washington State Healthy Youth Survey which showed an increase in teen use of tobacco vapor products. However, that same survey showed that use of cannabis overall did not increase post-legalization, and in some instances actually decreased.

“Characterizing Flavor” Defined

The DOH emergency rules defines flavored vapor product as “any vapor product that imparts a characterizing flavor,” which in turn is defined as:

‘Characterizing flavor’ means a distinguishable taste or aroma, or both, other than the taste or aroma of tobacco or marijuana or a taste or aroma derived from compounds or derivatives such as terpenes or terpenoids derived directly and solely from marijuana, as defined in RCW 69.50.101(y), or hemp plants that have been grown and tested as required by state law, imparted by a vapor product. Characterizing flavors include, but are not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A vapor product does not have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. It is the presence of a distinguishable taste or aroma, or both, that constitutes a characterizing flavor.

It is important to recognize that “characterizing flavor” does not include the natural taste or aroma of cannabis or hemp, or of terpenes or terpenoids derived from cannabis hemp. Thus, cannabis vapor products containing taste or aroma profiles derived from cannabis or hemp should be permissible. It is noteworthy that this ban only pertains to those compounds with a “distinguishable taste or aroma,” so compounds that do not have such qualities likely could still be added after this rule.

Terpenes: Derived from Where? The Rule’s Ambiguity

Though it is not obvious, cannabis producers regularly add terpenes to their products to enhance the natural flavors and aromas of the plant. Some of these terpenes are derived from cannabis, some from hemp, and some from other sources.

For the uninitiated, terpenes are organic compounds produced in many different plants (even some insects) that often emit a strong odor. Limonene, for example, is a terpene that is naturally produced by cannabis and is found in popular strains for its citrus flavor (see: Lemon Haze). But it’s also naturally produced by lemons and oranges, and you can often find it in your lemon-scented essential oils or dish soap.

Some may interpret the rule’s definition carving out a taste or aroma derived from marijuana or hemp to mean that tastes or aromas from other sources and added to a vape product result in a prohibited flavored vape product. However, it can—and arguably should–also be interpreted that key to the definition of “characterizing flavor” is that it is a distinguishable taste or aroma other than tobacco or marijuana, implying that non-marijuana/hemp derived compounds that provide the taste or aroma of marijuana could be allowable. Further, it could be argued that the carve-out for tastes and aromas from marijuana or hemp permits tastes and aromas other than tobacco or cannabis.

The last two sentences in the definition of “characterizing flavor” support the interpretation that vape products may include non-marijuana and hemp additives. Those sentences provide that a vapor product does not have a characterizing flavor “solely because of the use of additives or flavorings or the provision of ingredient information. It is the presence of a distinguishable taste or aroma, or both, that constitutes a characterizing flavor.” This supports a position that additives or flavorings may be added provided they do not otherwise result in a characterizing flavor.

Some cannabis stores have already stopped selling any vapor products that include any non-marijuana/hemp-derived compounds. We anticipate further guidance on these issues. The key takeaways from the current rules are as follows:

  • Marijuana/hemp-derived compounds are allowable, regardless of what taste or aroma they result in;
  • Non-marijuana/hemp-derived compounds that provide the taste or aroma of cannabis could be allowable, though the rule isn’t explicitly clear; and
  • Non-marijuana/hemp-derived compounds that result in a non-cannabis taste or aroma (such as a fruit, chocolate, honey, etc.) are likely not allowable.

The WSLCB Responds

Hours after the DOH vote on October 9, the Washington State Liquor and Cannabis Board (“WSLCB”) emailed stakeholders notifying that, effective midnight, flavored vapor products could no longer be sold to retail stores by processors or to the general public. The WSLCB also (1) required retail stores to prominently post this warning sign in their stores, (2) reminded licensees of packaging and labeling rules, (3) required licensees to disclose to the WSLCB all compounds used in the production and processing of vapor products, and (4) required licensee to cooperate with the ongoing epidemiological investigation.

Cannabis producers and processors will be grappling with these new rules, and can expect more follow-up regulations from the WSLCB. It remains unclear how these rules will be enforced, and what the penalties for non-compliance will be. Regardless, companies would be well advised to be aware of the new rules.