Nearly five years after the first legal sales of adult-use cannabis in Washington, lawmakers and regulators seem to have finally acknowledged that the state’s lab testing system is broken.
The failures have been an open secret in industry circles for years, but only recently—after the sale of more than $4 billion in total cannabis products—did regulators admit they’re unable to solve them.
“We don’t have the expertise,” Rick Garza, executive director of the Washington State Liquor and Cannabis Board (LCB), told The Stranger in February, as state lawmakers moved to revoke the agency’s oversight over testing labs amid widespread industry and consumer concerns.
Nick Mosely, Confidence Analytics
A longtime goal of legalization, even among the most hesitant supporters, was to ensure that consumers could finally know what’s in their cannabis. But while other states have moved to limit dangerous contaminants such as pesticides and heavy metals, Washington—one of the first two US states to legalize cannabis for adult use—has waffled and fallen behind.
Pesticides are perhaps the most obvious example. While state regulations prohibit the use of certain pesticides on cannabis, the LCB has never actually required that adult-use products be tested for those pesticides. Aside from the occasional surprise inspection, it’s entirely an honor system.
If that’s not a head-scratcher, consider heavy metals. The state spells out specific limits on individual metals, including arsenic, cadmium, lead, and mercury. Regulations say that products that exceed those limits “fail quality assurance testing.” But as with pesticides, the LCB doesn’t require that testing be done, except in the case of medical-only products.
“The testing program in Washington is weak,” said Aaron Riley, president of CannaSafe, a major California-based cannabis testing laboratory. “There’s really not safety requirements.”
Washington’s testing system is due for an overhaul. A law passed earlier this year will effectively rebuild it from the ground up. A public forum on pesticides and heavy metals testing—seeking input on what a better system would look like—takes place on June 25 in Olympia. After years of exposing cannabis consumers to dangerous pesticides and heavy metals despite growing calls for reform, Washington finally has a chance to catch up.
|Marijuana Testing Rules: Listen/Learn Session||Open forum for industry stakeholders to contribute ideas re: a better testing system||Tues., June 25, 1:30pm||LCB office, 3000 Pacific Ave SE, Olympia||Click here to register for webinar|
When a state imposes new testing rules on cannabis products, recalls typically follow. It’s a pattern that’s played out in Colorado, Oregon, and California. Recalls, while unfortunate for the companies involved, aren’t necessarily a bad thing. They’re a sign that testing works.
In California, the world’s biggest legal cannabis market, required testing has been a game-changer for the industry—and the consumer. “Before two years ago, people weren’t testing cannabis for pesticides, at least in California,” said Riley at CannaSafe. Then, as legal adult-use sales launched in early 2018, mandatory testing kicked in, with tests becoming more rigorous over time.
Almost immediately after California began requiring pesticide tests, companies began rolling out recalls. The state’s pesticide-testing requirement began on July 1, 2018. Within a few weeks, major California brands such as Bloom and Lowell Herb Co. had voluntarily pulled products off shelves due to pesticide concerns.
“A lot of people say that they’re organic and say they do everything right, and then they have an issue,” Riley said. In some cases, he said, a crop might fail pesticide tests without even its grower knowing why.
There are all sorts of reasons cannabis might be contaminated with pesticides, even if farmers aren’t using prohibited products. Sometimes a pest-control product is labeled as one thing but actually contains substances that are banned. Just last week, a product labeled as neem oil—a pesticide approved for use on organic crops—was found by Michigan regulators to also contain three prohibited pesticides: malathion, chlorpyrifos, and permethrin.
Other sources of inadvertent contamination might be due to pesticide or heavy metal residue in a growing medium or nutrients. One commonly used growing medium, coco coir, has had contamination scares in the past, Riley noted, while fertility treatments like fish emulsion may in certain cases contain mercury.
Even a bug bomb set off months earlier, in between grow cycles, can mean a failed test down the road. “They’ll just want to clean the room out between runs. You’re not even spraying the plants with pesticides,” Riley said of growers whose products he’s tested—and failed. Because trace amounts of prohibited pesticides can remain in the grow room for months, it may end up on plants, as well.
Outdoor growers face a special challenge. Other farmers growing non-cannabis crops nearby can unwittingly contaminate cannabis when they spray their own produce. with the wind carrying pollutants from one farm to the next.
Whether intentional or not, pesticide contamination was rampant in California before mandatory testing kicked in. According to data shared by CannaSafe, more than 24% of products the company was testing in April 2018 failed the state’s pesticide standards.
California Pesticide Testing
As screening requirements kicked in, however, that number steadily fell. By August 2018, the percentage of failing products had fallen to 9.24%. As of March 2019, that number was 2.84%—nearly a tenth what it was a year earlier.
When asked about how Washington’s testing system stacked up, Riley was blunt. “I’d be willing to bet there’s a lot of pesticide use in Washington,” he said. Judging from California’s experience, many producers may not even know it.
Concerns About Compliance—and Cost
Given the indications that pesticides are far more prevalent than consumers and even some growers might expect, one might wonder why Washington’s testing system is so lax. Aren’t Washington’s cannabis regulators supposed to be our watchdogs?
Well, yes and no. When Washington voters passed cannabis legalization in 2012, the state’s primary concern was how the federal government would react. And when the government did react—through the 2013 Cole memo, a Justice Department policy document that outlined conditions states must meet in order to avoid federal interference—quality control issues didn’t come up. The federal government told states to prevent diversion of cannabis to other states, prohibit access by minors, and replace the illicit market. Product safety simply wasn’t a priority.
As the first legal sales began, state regulators focused primarily on ID checks and track-and-trace procedures meant to prevent diversion. Mandatory lab testing was introduced, but regulators limited required screenings to things like potency, mold, and “foreign matter” inspections.
Currently the state requires adult-use cannabis be tested for:
- Potency, including THC and CBD levels
- Microbial contamination, such as from mold, fungus, or bacteria
- Mycotoxins, or toxic chemicals produced by microorganisms
- Moisture, which can increase the risk of microorganism contamination
Why no provision for pesticides or heavy metals, even after five years of legal sales? Largely because of pushback by growers, who said the cost of product testing would be too big a burden, hurting small farms and driving up costs for consumers.
“Fundamentally, requiring pesticide testing doesn’t bother me,” Mark Greenshields, a cannabis grower in Seattle, told Marijuana Business Daily more than a year ago, as public calls for mandatory testing grew louder, “but technically, increasing the costs, that’s a problem.”
Others, including lab-testing companies and some consumer advocates, dismiss those concerns as the vestiges of an underground economy. Cannabis is now a legal, regulated product, they say, and consumers deserve to know what they’re getting.
“Regulations are coming. It is what it is at this point,” said Riley at CannaSafe. “The irony of people complaining about regulations in Washington? There really aren’t any.”
Garbage in, Garbage Out
There are, of course, a number of lab tests that Washington cannabis regulators do require. But a closer inspection of how the state’s existing testing system operates reveals fundamental weaknesses in how those tests are done. These weaknesses threaten the accuracy of test results and create opportunities for companies to game the system.
Starting from the moment that cannabis is harvested, Washington’s testing system falls short. The LCB requires that a sample of every harvest be subjected to basic testing. Who chooses that sample? The grower. And that can be a problem.
“Under Washington’s requirements, the manufacturer of the product will select a sample themselves and send that sample to the laboratory to analyze,” said Nick Mosely, chief science officer at Confidence Analytics, a licensed testing lab in Washington. When companies can select their own samples, he said, “there is opportunity for the manufacturer to bias the analysis.”
When Mosely says “bias the analysis,” he basically means cheat. The way Washington’s testing system currently operates has allowed companies to influence test results—and sometimes flat out lie. Mosely explained to Leafly just a few of the ways he’s seen the selection process backfire.
Growers generally want to send in the best of their crop for testing. Higher-quality samples tend to have higher potency in terms of cannabinoid levels, and they’re less likely to fail for issues like mold or moisture.
Recognizing this, growers sometimes select samples that may not represent the entire batch, Mosely said, “such as selecting only the colas,” or the tops of the cannabis flowers. Colas usually contain higher concentrations of cannabinoids and terpenes—factors that influence consumers’ purchasing decisions.
Mosely said he’s seen growers engage in more nefarious practices, too. “We’ve had people just dousing their samples in kief,” he said, presumably in an effort to boost potency results. (Kief, the collection of cannabis resin glands—and the makings of hash—is rich in cannabinoids and terpenes.)
In order to avoid being flagged for things like fungus, bacteria, or moisture, some growers will separate their sample from the rest of the group and carefully dry it on its own. “They’ll literally do their bulk drying in the drying room and the sample drying in the desiccator in order to beat the microbial test,” Mosely said. “This is just the stuff that we’re catching.”
Nick Mosely, Confidence Analytics
Rumors of dishonest sampling practices abound. For example, there’s nothing in the current system that would prevent a grower from sending in a sample of cannabis grown by another grower and purchased from a licensed store.
“It’s garbage in, garbage out,” Mosely said. “If the lab is getting a nonrepresentative sample, the rest of the testing is pointless.”
The process is a bit better once the samples get to the lab—but only barely. Testing procedures have yet to be standardized, meaning the same sample sent to two different labs could come back with significantly different test results.
In 2017, a Leafly investigation found that a group of testing labs had formally complained to LCB regulators that one lab, Bellingham-based Peak Analytics, appeared to be artificially inflating THC values for products it tested.
“Traceability data demonstrate that this over-reporting is consistent through time and across grow spaces,” the complaint alleged. “The data depicted in the graph represent tens of thousands of samples.”
The allegations were hardly unexpected. For months, data analyst and cannabis watchdog Jim MacRae had made the case on his blog at Straight Line Analytics that Peak’s numbers were more or less statistically impossible.
Months after news of the complaint went public, the LCB acted, suspending Peak’s testing license. The business never recovered. Today, Peak Analytics—once the state’s top lab—no longer exists.
Wrong Agency, Wrong Time
Tension mounted between the industry and the LCB as awareness of the state’s testing flaws grew. Many felt the LCB’s efforts to reform the system, such as by establishing a limited secret-shopper program meant to test products on store shelves, were inadequate. “Their attempts have always fallen short,” Mosely said of the LCB’s efforts to address past testing problems.
Not that he can blame them. “They’re not the right agency” to be handling cannabis testing, he said.
When Washington voters passed legalization, Mosely explained, “the LCB got a lot of responsibility dumped on them all at once, and they did not have a lot of expertise.” For one thing, “LCB has absolutely no science background,” he noted. “They’re not a science agency.”
On top of that, the LCB, which also regulates alcohol, was in the midst of overseeing a shift in state liquor sales, transitioning from state-owned liquor stores to privately owned shops. Their hands were full on both fronts.
Yet it took years for the the agency and other state officials to formally recognize the problem. When LCB Executive Director Rick Garza told the Stranger in February that “We don’t have the expertise” to oversee cannabis testing, it was a striking acknowledgment what industry and consumer groups had been arguing for years.
Now the state’s testing system is being overhauled. In May, Gov. Jay Insee signed a bill to revoke oversight of the state’s testing labs from the LCB and reassign it to the Department of Ecology. The shift could mean new, more effective procedures and more reliable results. But under the plan, change could be years away.
Building a Better System
Mosely, who’s played a leading role in pushing for Washington’s cannabis testing system to be restructured, acknowledges there’s no perfect testing system. “No one has cracked the nut or whatever,” he admitted. “It’s going to be a long road until we get to the place where we don’t have the known frustrations and deficiencies and all that.”
But while it’s impossible to know what testing will ultimately look like, it’s easy to see which way cannabis testing is trending. “Every state that comes on seems to have a better testing system than the last one,” said Mosely. Just watch the map.
“Oregon basically took Washington’s rules and copied them and made improvements,” he said. And California? “They’ve taken Oregon’s rules and kicked them up—several notches.”
How does Washington catch up? “If I had my way in Olympia,” Mosely said, “I would say let’s just do what California is doing. If we can keep up with California, then we’re ready for international, because I think that’s the way the world is going to see it.”
“The farmers are paying too much for testing but not getting a lot out of it. The oil producers are not paying enough.”
One thing California does is divide cannabis regulation among agencies: the Bureau of Cannabis Control, which handles most licensing; the Department of Food and Agriculture, which licenses and oversees cultivation; and the Department of Public Health, which oversees manufacturing and product safety.
Washington’s decision to move testing oversight to the state Department of Ecology echoes California’s approach. The department might not sound cannabis-related, but staff there have a background in science and already accredit labs that test things like water quality. Mosely ticked off a checklist of qualifications: “They’re familiar with lab practices, they’re familiar with proficiency testing, they’re familiar with accreditation,” he said.
In addition to requiring labs be appropriately accredited, follow standardized testing methods, and be subject to proficiency testing—in which a third party sends semi-blinded samples to different labs for data analysis in order to ensure the labs results are similar—Mosely also called for better state-level analysis of lab data. “It’s a trove of information that can be used to monitor the information of the lab,” he noted. Indeed, it was aggregated lab data that first helped data scientist MacRae identify Peak Analytics’ unusually high THC numbers.
As for the cost of testing? Mosely and others encouraged those costs be spread around the industry more equitably than they currently are. “The farmers are paying too much for testing but not getting a lot out of it,” he said. “The oil producers are not paying enough.”
Part of Mosely’s reasoning is that the manufacturing process is messy and prone to cross-contamination. Extractors might reason that their products are pesticide-free, for example, because the flower used was grown without pesticides. But even shared extraction equipment or flower that’s been bought and resold to another processor can bring contaminants into the environment.
“A lot of these companies don’t even have farms,” Mosely said. “They’re purchasing cheap material from farms they haven’t audited, and they’re getting it from far and wide. The material has traded hands several times, across dozens of different businesses.”
While it’s intuitive to test growers, he said, “end-product testing is where our focus should be.” In other words, rather than prioritize testing raw material that could be contaminated during the manufacturing process, a testing system should work to ensure that products further on in the supply chain are still up to state standards. “There’s a huge pesticide burden, or liability, in many of these products that’s known,” he said, “and we’re not routinely screening that out.”
The new Washington law, House Bill 5052, will reassign oversight of lab testing to the state Department of Ecology and establish a panel of scientists to help revise testing procedures. That will likely mean big changes for cannabis testing, both in terms of what labs test for and how testing is done. But the handoff isn’t scheduled to happen until 2024.
In the meantime, LCB still has a chance to improve the current system. Next week, on June 25, the agency will hold a listen-and-learn forum in Olympia to discuss what the impact on the industry would be “if all marijuana produced and processed in Washington State were tested for pesticides and heavy metals,” according to an LCB announcement.
Everyone’s invited. The forum will take place at 1:30 p.m. at the LCB’s headquarters in Olympia and will also be available online. The LCB describes the event, part of an open rulemaking session, as “an opportunity for all licensees, industry partners, or any interested party to contribute to the conversation.”
Mosely, who will serve on the newly established science task force, acknowledged that the plan to fix Washington’s testing system has “a long runway.” And while he’s optimistic that there’s finally a plan in place to catch up with other legal states and ensure consumers are getting a safe, accurately labeled product, he also knows from experience that problems don’t go away overnight.
“Humans are biased,” he said, reflecting on the ways he’s seen some growers cheat. “You actually have to try really hard to remove that bias.”