Questions Raised Over California’s Cannabis System
On January 1 2018, California officially legalized recreational cannabis use, becoming the largest state in the US to commit to full cannabis law reform, having voted to legalize medicinal cannabis over twenty years earlier.
Alongside the recreational legalization, California began to rollout what was then thought to be the strictest suite of cannabis testing regulations in the nation.
The regulations would be introduced in three phases over the course of 2018 in order to give distributors and testing facilities enough time to adjust to the changes in protocol and demand. With only one phase of this rollout yet to occur, planned to begin in the new year, questions are being raised over whether this ultra-strict approach has created more problems than it has fixed.
California’s approach to cannabis testing
California’s new suite of cannabis testing regulations was designed to increase the number of required tests for potential contaminants on cannabis crops; before this, all testing on cannabis crops outside of simple potency screening was done on a purely voluntary basis. Dispensaries that chose to perform additional tests could prove to their customer base that their products were free of major contaminant risks and drum up business through improving consumer confidence, but this was in no way mandatory.
On New Year’s Day 2018, the first phase in California’s new mandatory testing program began. It would make it mandatory for all cannabis products manufactured for sale to be tested by a third-party for the presence of specific microbial impurities and residual pesticides or solvents, alongside carrying out tests to determine the moisture content and cannabinoid profile of the crop. The homogeneity of edible products was also required to be tested.
Six months later, on July 1, phase two introduced even stricter mandatory requirements for residual solvent and residual pesticide testing, along with making foreign material testing mandatory for all forms of inhalable cannabis, inhalable cannabis products, and edible cannabis products. These stricter regulations meant that testing laboratories were now required to test for the residual presence of 66 different common pesticides, a substantial increase from the 21 pesticides included as part of phase one.
Now, several months into the launch of phase two, some members of the California cannabis industry feel that the strictness of the regulations combined with the relatively short transition periods could have unintentionally pushed testing facilities and distributors to cut corners.
Fraud at one testing laboratory
At the beginning of December, it was revealed that Marc Foster, the then lab director of Sequoia Analytical Labs in Sacramento had been falsifying data for 22 of the 66 pesticide tests the state requires.
Necessary testing equipment that Foster was responsible for was malfunctioning in the lead-up to the July 1 launch of the stricter testing requirements. Rather than informing other laboratory staff of the problems and halting testing until a solution was found, Foster went rogue and began to secretly falsify data from these 22 tests, believing that he would be able to fix the faulty testing equipment in the interval. As a result, around 700 samples passed through the laboratory without properly being tested for the full spectrum of pesticide contaminants.
Sequoia willingly forfeited its testing license as soon as the fraud was uncovered by inspectors from the Bureau of Cannabis Control and has since terminated Foster and hired a suitably qualified replacement. Changes have been made to procedure and oversight in the lab operation, and it is hoped that the lab could regain its license and resume operation in the new year.
Whether the fraud was motivated by perceived pressure to meet the July 1 deadline for improved pesticide testing is mere speculation, but nonetheless the discovery of the fraud has been a blow to confidence in California’s cannabis testing system.
Performance of testing laboratories
In the first two months following the introduction of phase two’s mandatory strict pesticide testing requirements, approximately 1 in 5 batches of cannabis tested in California’s labs failed to meet the new standards. New data collected over the course of November shows that this has now dropped to a failure rate of 14 percent, with the majority of those being novelty edible products or oral tinctures.
The majority of reasons for failure were reported to be a result of improper labelling, such as listing an incorrect potency. This was the case for over 2,100 instances of failure, out of a total of 3,373 failures recorded between July 1 through November 30. Failure due to the presence of pesticides was responsible for around 700 failures in the same period.
“With any new rules, there’s always going to be a period of adjustment that takes place,” explained Alex Traverso, a spokesman for the state Bureau of Cannabis Control, to the Associated Press. “The cannabis industry in California adapts pretty quickly, and I think that’s what we’re seeing with these lower [failure] rates in testing. That’s encouraging.”
Cannabis consumers in California will certainly hope that is what they are seeing. The test result fraud at Sequoia was only uncovered at the end of November and it is unclear whether those results were included in this November data. Similarly, with the knowledge that the fraud went undiscovered for nearly five months, some may worry about the possibility of other labs or single actors within those labs carrying out similar fraud at this time.
The final phase of testing
Phase three, the final phase of California’s new testing regulations, will have come into effect on December 31. It introduces further mandatory tests for the presence of heavy metals and mycotoxins in cannabis crops, as well as the introduction of water activity tests. Terpenoid tests for products whose labels make claims relating to terpene levels will also be required under this phase.
Some concerns surrounding the costs related to this testing and a potential scarcity of phase 3 compliant labs have already been raised ahead of the launch. However, in a bid to learn from the aftermath of phase two, this time businesses will be given some “wiggle room” at the beginning of the phase to allow for a smoother transition under the new regulations.