State investigators have uncovered numerous instances of marijuana product adulteration by businesses attempting to manipulate contaminant testing. (Colorado MED)
One of the fundamental incentives for consumers to purchase cannabis products from state-authorized sellers, which are likely more expensive than “street” sales, is the greater safety of legal products vs. any still being grown and sold illegally. But with the Colorado Marijuana Enforcement Division (MED) stating that it has “identified many examples of Regulated Marijuana Businesses adulterating Test Batches in order to pass required testing which has led to administrative actions, penalties, and in some cases Health and Safety Advisories”, significant public safety concerns have been raised. When a test batch is altered or adulterated, it no longer accurately represents the harvest or production batch from which it was pulled, thus a batch could go to market with undisclosed contamination issues.
Mold and unapproved pesticide contamination are critical issues in cannabis, with the MED having issued 13 marijuana recalls the first half of 2023 for the presence of bacteria, mold, or yeast – and most citations also tagging the business for improper testing (e.g., improperly submitted for testing, not submitted for testing in accordance with MED rules).
Because of this, the MED issued a new rule for its regulated testing facilities, effective July 1, 2023, requiring that they notify MED and quarantine test batches when they suspect, or have reason to suspect, that they may be adulterated. A few signs that may cause a batch to be suspect include discoloration (e.g., bleaching or dark brown appearance), unusual smell, and inconsistent texture of samples submitted from the same harvest batch. The CDPHE Marijuana Product Sampling Protocol requires that samples are to be collected by MED personnel or a “Designated Test Batch Collector” (who is designated by a manager or Owner Licensee and completes the required training of 1 CCR 212-3 Part 4-110[B] according to the specific requirements of the protocol. Although the intent is to provide the Marijuana Testing Facility with samples representative of the production batch, the ability of a facility to collect its own samples does open the door for potential “selective” sampling.
And the MED is not playing around. When it does find evidence of willful or deliberate test batch adulteration or alteration – which constitutes a class misdemeanor, it will issue administrative actions, penalties, and/or health and safety advisories, recommending “the strictest penalties possible to the State Licensing Authority.” These can include suspension or revocation of the license, and fines of up to $100,000 per violation.
While it is Colorado’s marijuana enforcement division that is upping the ante on contaminated and adulterated product, it is unlikely that the issue is confined to that state. It is more likely that having been one of the first states to legalize adult-use, other states’ programs are even less mature and developed. In fact, there are currently no uniform testing methods or contaminant testing requirements between states, thus there is extensive variability. Some examples are the variation in requirements for pesticide screening (with some states not requiring any pesticide screening and others requiring it for more than 60 pesticides); microbial contamination (from presence/absence for a few bacteria to “quantitative enumeration” for many); and method validation (from pre- to post “preliminary” licensing).
The marijuana market of the U.S. has often been likened to, and referenced as, the Wild West. When a state with a decade of legal adult-use marijuana is continuing to have issues with the safety of its products, it’s no wonder that states with lesser years are struggling and are implementing varying requirements for product safety. As TAG has stated in previous articles, the only real solution we see is federal legalization, with FDA authority over products, which are then regulated as food, dietary supplements, or pharmaceuticals as applicable.