Marijuana

Dirty Weed? California's Marijuana Pesticide And Quality Assurance Issues

Mandatory cannabis testing is needed to give cannabis customers confidence in California's marijuana marketplace.

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weed highway signIt started in Oregon with the breaking of “A Tainted High.” It then moved to Colorado with 19 marijuana and marijuana product recalls in 19 weeks in 2015. Washington then overhauled its pesticide program to prevent illegal pesticides on its regulated cannabis products (which eventually led to recall rules for the first time in the state). Now, California is finally learning how dangerous its cannabis can be, and it is only a matter of time before state regulators under California’s Medical Cannabis Regulation and Safety Act (“MCRSA“) and Adult Use of Marijuana Act (“AUMA“) institute regulations to ensure cannabis quality and to end the use of toxic and harmful marijuana pesticides.

Right now though, none of California’s existing medical marijuana laws mandate any kind of cannabis quality assurance or pesticide testing and that means California’s cannabis patients have for years been taking their chances that their medicine is safe for consumption. You’ll also be hard-pressed to find more than a few California medical marijuana dispensaries that follow Proposition 65, which added marijuana smoke to its list of potentially cancer-causing products in 2009.

But that’s all about to change, because AB 266 of the MCSRA will require serious cannabis testing:

Medical cannabis and medical cannabis products shall be tested by a registered testing laboratory, prior to retail sale or dispensing, as follows: Medical cannabis from dried flower shall, at a minimum, be tested for concentration, pesticides, mold, and other contaminants.

And AB 243 of the MCRSA also calls for California to regulate pesticides on cannabis:

The United States Environmental Protection Agency has not established appropriate pesticide tolerances for, or permitted the registration and lawful use of, pesticides on cannabis crops intended for human consumption pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 et seq.). The use of pesticides is not adequately regulated due to the omissions in federal law, and cannabis cultivated in California for California patients can and often does contain pesticide residues. Lawful California medical cannabis growers and caregivers urge the Department of Pesticide Regulation to provide guidance, in absence of federal guidance, on whether the pesticides currently used at most cannabis cultivation sites are actually safe for use on cannabis intended for human consumption.

Under the MCRSA, California’s Department of Pesticide Regulation (DPR), in consultation with its Department of Food and Agriculture, is charged with developing standards for pesticide use in cannabis cultivation and setting “maximum tolerances for pesticides and other foreign object residue in harvested cannabis.” And the DPR, in consultation with the California Water Resources Control Board, must promulgate regulations mandating pesticides used with indoor or outdoor cultivation of medical cannabis meet standards equivalent to the Food and Agricultural Code and its implementing regulations. All this will make California the most conscientious state on marijuana pesticides, by far. For instance, each regional water board and the State Water Resources Control Board may address water waste and discharge regarding pesticides and herbicides. No other state has yet to seriously examine these sorts of things despite marijuana’s obvious environmental impacts.

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As far as adult-use cannabis pesticide testing goes, the AUMA mandates compliance with the pesticide regulations set forth under the MCRSA by the Bureau of Medical Cannabis Regulation.

We don’t yet know what these pesticide and testing regulations will look like, but we’re sure to find out in late April when the Bureau is expected to release the first set of draft MCRSA regulations. Nonetheless, our vast experience in regulated marijuana states tells us that should expect mandatory analyses of the following, at minimum:

  1. Microbiological screenings;
  2. Foreign matter inspection;
  3. Residual solvent tests; and
  4. Pesticide and other chemical residue and metals screening.

Though pricey for the state of California and for marijuana businesses as well, mandatory cannabis testing is needed to give cannabis customers confidence in California’s marijuana marketplace. Though California will set the floor for consumer safety with quality assurance testing (and packaging and labeling rules), all California marijuana businesses should prepare themselves now for the consequences of potentially faulty testing and for products liability claims (including against retailers), by — at minimum — setting in place adequate recall plans.

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Hilary Bricken bio photoHilary Bricken is an attorney at Harris Bricken, PLLC in Seattle, and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of the Canna Law Blog. You can reach her by email at hilary@harrisbricken.com.

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