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Oregon Court Suspends Aspergillus Testing Requirement For Cannabis Products

By Leo Bear-McGuinness

Published: Aug 29, 2023   
Someone in a mask holds cannabis leaves between tweezers, the leaves in a test tube.

Image credit: iStock

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Cannabis products in Oregon no longer have to be tested for Aspergillus fungi following a suspension order from the Oregon Court of Appeals.

As first reported by Willamette Week, the court’s motion was granted on August 25 and comes one month after the state’s largest cannabis trade association sued the state’s cannabis regulator in protest of the Aspergillus testing requirements.

A recap and repercussions 

On March 1, the Oregon Liquor and Cannabis Commission (OLCC) began requiring all cannabis flower harvested in the state to be tested for heavy metals and Aspergillus fungi.

The Oregon Cannabis Association claimed the new testing rule was costing growers dearly and so, along with the three separate cultivation companies, filed a lawsuit in late July against the Oregon Health Authority (OHA) to pause the requirement.

Now the association seems to have got its wish.

“The court has considered the irreparable harm to petitioners in the absence of a stay, petitioners’ likelihood of success on the merits, and the risk of harm to the public is a stay is granted and, in light of those considerations, concludes that a stay of enforcement of the Aspergillus Testing Rule is appropriate in this case,” the Court of Appeals wrote in its decision, according to Willamette Week.

The ruling means the association’s case can move forward and the Aspergillus rules cannot be enforced until the case is settled.

A spokesman for the OHA said the agency is “reviewing the decision and will be discussing next steps in the coming days.”

Kevin Jacoby, a lawyer representing the cannabis businesses suing the OHA, told Willamette Week it’s likely the state will subvert the court’s decision by making new rules that enforce similar requirements that aren’t subject to today’s stay. However, these possible new rules are unlikely to be enacted immediately.

“Oftentimes they see the writing on the wall and will rather quickly move to rulemaking that will change the rule,” Jacoby said. “Once they change the rule, that would moot the judicial review proceeding regarding the validity of the rule. But new rulemaking would likely take six to eight months.”


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