Since starting Fairwinds, a Vancouver-based cannabis company, in 2014, James and Wendy Hull said they’ve heard from customers who’ve praised their products for helping them with pain, anxiety and other ailments – even cancer.
Because of state regulations, the packaging for the company’s infused tinctures, topicals, capsules and other products contains no information claiming any therapeutic effects. The couple are also cautious in how they describe their products. The products made in Fairwinds’ east Vancouver headquarters have names such as “Deep Sleep,” “Digestify” and “AM Relief” that hint at the possible effects of each product.
“That’s the only place we’re allowed to explain the intent of the product,” Wendy Hull said.
Fairwinds employs more than 20 people, and Hull pointed to sales data showing their products were among the top sellers in Washington’s legal cannabis market last quarter, with over $4 million in retail sales. Hull also said that Fairwinds is one of the few companies compliant with state Department of Health medical marijuana requirements.
But now, the couple say the company faces uncertainty because of a new policy from the state Liquor and Cannabis Board that requires them to put even less information on their products’ packaging.
“The customer would have no idea what they are purchasing,” said Wendy Hull, who worries that the regulations could result in a customer taking a product like “Deep Sleep” in the morning. “We feel it’s a consumer risk.”
In January, the state Liquor and Cannabis Board issued a policy intended to clarify current regulations prohibiting cannabis products from being advertised or presented as having “curative or therapeutic effects.” The policy bars cannabis companies from making any statement or reference about their products impacting consumers’ health or having “an effect on the body or mind.” The policy also prohibits companies from using words such as “healing,” “relief,” “restorative” and “wellness,” among others.
Cannabis companies, like Fairwinds, would have until January 2020 to submit packaging and labeling in compliance with the new requirements or remove them from the market. Hull said she’s not sure how the company will respond.
Brian Smith, spokesman for the state Liquor and Cannabis Board, said the board updated the policy to address more spurious claims made in the cannabis market.
“There are a lot of claims in the (cannabis) industry about what a product does: ‘This cures pain or epilepsy,’ ” Smith said. “But there is nothing in the science that backs it up.”
The situation has caught the attention of local state lawmakers, who’ve introduced legislation intended to remedy the situation. But the state Liquor and Cannabis Board has expressed concerns that the bill could end up exposing the state to legal liability.
Labels and liability
In response to the situation faced by companies like Fairwinds, Sen. Ann Rivers, R-La Center, has introduced Senate Bill 5298. Its companion, House Bill 1250, is sponsored by Reps. Sharon Wylie, D-Vancouver, and Brandon Vick, R-Vancouver.
The legislation seeks to give consumers more information by allowing labels on cannabis products to include claims describing the products’ intended function.
Both bills would also permit cannabis companies to use terms such as “wellness,” “health,” “assist” and “relief,” among others. The bills would prohibit product labels from making false or misleading statements. It also wouldn’t allow claims to diagnose, treat, cure or prevent disease.
Speaking at a hearing last month before the Senate Labor and Commerce Committee on her bill, Rivers said that the legislation is intended to mirror U.S. Food and Drug Administration guidelines to clarify what claims can be made on labels.
During House and Senate committee hearings held last month, legislators heard from Hull and other cannabis business owners who support the legislation.
Vicki Christophersen, the executive director of the Washington CannaBusiness Association, also spoke in favor of the bill before the House Commerce and Gaming Committee as a way to help consumers navigate the increasing variety of products, such as creams and tinctures, that have appeared in marijuana stores.
“This is really about consumer information and consumer protection,” she said. If a consumer is looking for a product to help with sleep, the product should display the word “sleep,” she said.
At both hearings, Chris Thompson, director of legislative affairs for the state Liquor and Cannabis Board, said that while his agency was sympathetic to industry concerns, it still wasn’t on board.
“We are concerned about the revocations of rule-making authority in this area,” he told the Senate Labor and Commerce Committee.
He said the state Liquor and Cannabis Board is still involved in product approval and oversight. If the legislation is approved, he said producers and retailers wouldn’t be responsible for claims made on their products and that liability could fall to the state.
What happened to medical pot?
In 2015, Gov. Jay Inslee signed a bill, sponsored by Rivers, that merged the state’s largely unregulated medical marijuana market with its tightly regulated recreational market.
Wylie referenced the merger of the market during the House Commerce and Gaming Committee hearing on her bill. She said her bill was appropriate after a transitional period when the two markets merged.
“We have people that do both and sell both and customers who have been using different forms of cannabis for many, many years,” she said.
As part of the process of merging the two markets, the state created a process that would allow companies to voluntarily apply for approval to place logos on their products, indicating they’d met requirements set by the state Department of Health for medical marijuana. To get a logo, companies need to test their products for pesticides, heavy metals and mycotoxin. Companies can also get logos verifying their products contain high levels of THC – the psychoactive chemical in marijuana – or CBD – the nonpsychoactive compound in marijuana.
Julie Graham, spokeswoman for the state Department of Health, said that other medicinal effects are not evaluated during the process. She said that just three cannabis license holders are authorized to use the medical marijuana logo.
Speaking at her company’s headquarters, Hull said that Fairwinds is one of those companies. She said many of her products are nonpsychoactive and contain ingredients other than cannabis, such as essential oils. Before the medical and recreational markets merged, it was easier to make claims about products, she said. But that’s changed.
Hull has never had a customer say the packaging on her company’s products are misleading, she said. Instead, she’s heard requests for more information.
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