Wash. State Removes Product Destruction, Creates Recall Rules

Wash. State Removes Product Destruction, Creates Recall Rules

March 24, 2016

The Washington State Liquor and Cannabis Board (WSLCB) removed product confiscation and destruction as administrative penalties for producers and processors at its Mar. 23 meeting. In the same meeting, it included emergency rules for cannabis product recalls both through the board and licensees.

“These rules are based on extensive public input. The board was diligent in listening and seeking out practical input on its draft rules,” says Jane Rushford, board chair, in a statement. The highlights and full revisions can be found at the WSLCB website here

In the new revisions, all penalties for cannabis producers and processors are monetary. Originally, penalties for producers and processors had both monetary and destructive components. For example, the second violation for unauthorized sale to a retail licensee included a $5,000 fine plus the destruction of 25 percent of harvestable plants. Under the new rules, the same offense calls for a $5,000 to $10,000 monetary fine, depending on the producer’s tier.

The original revisions were contested by many in the industry, and called “abhorrent” by Gene Flynn, managing member of Canna Herb Farms LLC in Ford, Washington, in our coverage last month

“The destruction of inventory as an administrative sanction is repugnant to deep-seated notions of fairness, proportionate sanctions, preservation of assets, and doubtless many more fundamental underpinnings of our legal system,” Flynn wrote in response to the WSLCB’s proposal in February. “As far as I can determine, it is an unprecedented form of administrative sanction in the State of Washington, or any other state of the union, and it disregards bedrock principles of private property rights. It is astonishing to think that such a provision found its way into the WAC in the first place, and the discussion should be about removing inventory destruction from the WAC, rather than an aggressive expansion of its application.”

In a separate action from the other revisions, the board also included new emergency rules to detail how the state will handle cannabis product recalls. The recall rules can be found online here

“The rules are fairly short and there are some ambiguities in them, but this is a start towards ensuring consumer safety and that Washington’s marijuana marketplace produces and distributes product fit for consumption,” says Hilary Bricken in a Canna Law Blog post

The emergency rules provide for recalls both by licensees and by the board itself. Licensees can recall products for reasons unrelated to public risk, like aesthetics or product or packaging issues. According to the rules, a recall is required when evidence that unapproved pesticides were used or are present on the plants, or another condition risking public health and safety is present.

When there is a problem, the board’s new rules allow for a licensee to do their own product recall in coordination with an agent from the WSLCB. Product that is shown to have been exposed to unapproved pesticides or plant growth regulators are subject to seizure and destruction.

“The rules make no mention of re-purposing tainted product. We take this to mean that destruction of the product appears to be the only option, with the Board deciding if and when the recall has been effective and when it will end,” writes Bricken.

The board will also maintain a webpage listing all current and completed recalls of product, according to the revisions.

Other highlights from the board’s revisions (from the WSLCB site) include:

•    Removal of the requirement that “Mr. Yuk” stickers must be on all labels for marijuana infused edible solid and liquid products. The Board will work with the Washington State Poison Center to create a new indicator for marijuana infused products;

•    Allows a marijuana retailer to accept any open marijuana product return with the original packaging;

•    Removed the requirement for the employee’s birthdate to be included on the employee ID badge. Employees must have their state-issued identification available to verify the information on their badge; and

•    Added language that failure to address monetary penalties for two or more violation notices in a three-year period will result in license cancellation. Licensees failing to respond to a violation or have outstanding fines shall not be eligible to renew