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If you keep a pulse on cannabis-related issues, you are well aware that the industry has been plagued with a wide range of challenges, from restricted banking services to unfair taxation treatment. Another significant hindrance to the cannabis industry’s growth and economic development has been the lack of uniform testing standards.
Reasons For Lack Of Uniform Testing Standards
Although 37 states have legalized cannabis for medical use and 19 have done so for recreational purposes, cannabis remains illegal under federal law — while hemp and marijuana are both derived from the cannabis plant, this article strictly refers to marijuana when mentioning “cannabis.” Cannabis’s controlled status under federal law partially explains the lack of scientifically recognized standards and guidance from federal agencies on how to develop and validate analytical methods specific to cannabis products.
To make things worse, the states that currently impose some form of potency or contaminant testing requirements on cannabis products sold within their borders vary significantly. For example, Colorado requires testing for 13 pesticides whereas California mandates testing for 66 of them. There are also considerable differences in the permissible limits of contaminants allowed within each state.
The growing popularity of cannabis products, combined with the lack of a universal testing protocol, has sprung up the need for testing labs to help meet quality, safety, and labeling requirements for legalized cannabis products.
The absence of a homogeneous testing scheme with cross-validation among labs has forced these businesses to develop their own standards, resulting in considerable potency results differences between labs and testing practices on the fringe of unlawfulness.
Potency Result Differences
The cannabis plant’s biological profile is incredibly complex with more than 400 compounds, including terpenes, flavonoids, and cannabinoids. The accurate measurement of each compound, as well as that of pesticides and other contaminants, requires different instruments and techniques that only labs with the proper resources and level of expertise can develop and implement in a safe, efficient, and consistent manner.
While many labs in the U.S. use reliable techniques to ensure quality control, the growing popularity of cannabis and its lucrative nature lured in novices into the testing world. Less experienced labs tend to rely on manufacturer instruction manuals and methods of operations for testing equipment, a practice that fails to account for the complex nature of cannabis matrices. This, in turn, leads to widely different and often inaccurate testing results that introduce unsafe cannabis products in the stream of commerce and jeopardize public health.
Another factor that triggers differences in potency results is that different testing methods tend to produce different results. This means that even labs that implement effective testing methods and validation procedures may come up with different results when testing the same sample. Practically speaking, these differences are significant in that using one testing method can result in a different legal outcome than using another method.
Unlawful And Dangerous Practices
The ability to use certain testing methods to create more desirable results has led to a hugely problematic phenomenon known as “lab shopping.”
“Lab shopping” refers to undisclosed quid pro quo deals between cannabis companies and testing labs in which the labs inflate THC potency results to meet consumer demand — many mistakenly associate THC levels with the quality of the product — and deflate contaminant values to ensure compliance with state-mandated testing requirements.
These nefarious practices have resulted in disciplinary actions, including suspensions, and in an uptick in claims based on allegations of contamination, mislabeling, and testing failures. Not only have these illegal methods hurt consumers’ trust and confidence in cannabis products, they have also increased the industry’s liability and vulnerability of being scrutinized by state regulators and getting hit with class action lawsuits.
Why Standardization Of Testing Requirements Matters
In light of all of these issues, adopting uniform standards for testing will help the cannabis industry follow its course and succeed by:
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- Reducing liability for contamination and labels claims
- Advancing public health and safety goals
- Restoring the integrity of the cannabis production supply chain
- Facilitating interstate commerce of safe cannabis products upon the federal de-scheduling of cannabis
If you read this column, you may recall that the patchwork of state cannabis regulations is likely to create issues upon federal legalization. Specifically, state regulations, some of which impose burdensome requirements on out-of-state cannabis stakeholders, risk running afoul of the Dormant Commerce Clause (DCC) — the DCC prohibits states from enacting legislation that discriminates against or excessively burdens interstate commerce.
Therefore, adopting a standardized testing framework before federal legalization occurs would help alleviate any DCC issue and remove any obstacle to cannabis trade across state lines. For more on this issue, I suggest reading the National Cannabis Laboratories Council’s (NCLC) white paper that recommends the adoption of a national regulatory framework to govern standard tests panels, sampling requirements, testing methodologies, lab accreditation, and proficiency testing requirements.
Nathalie Bougenies focuses her practice on health and wellness, in addition to corporate transactions and regulatory compliance. For the past four years, Nathalie has helped clients navigate the complex regulatory landscape of hemp products intended for human consumption and advises domestic and international clients on the sale, distribution, marketing, labeling, and importation of these products. Nathalie frequently speaks on these issues and has made national media appearances, including on NPR’s “Marketplace.” She also authors a weekly column for “Above the Law” that features content on cannabis policy and regulation. For four consecutive years, Nathalie has been named Rising Star by Super Lawyers.
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