Who’s Watching the Watchmen?

At the 2015 Marijuana Business Conference and Expo, held last year in Las Vegas, keynote speaker and longtime consumer advocate Ralph Nader provided words of warning to the cannabis industry.

“Proper regulation is the best aspirin you could ever have, other than marijuana,” Nader said, to a ripple of laughter. “We’ve got to have standards of inspection, for, say, pesticides, for fungus, for rot. We have to have standards of advertising and truth, so we don’t get hit with lawsuits.”

The lawsuits Nader presciently predicted have already arrived. More importantly for the purposes of this discussion, however, are Nader’s comments on testing labs. Marijuana Business Daily reports that Nader stressed the importance of testing labs being independent from the companies that they were testing so as to limit the possibilities for corruption.

While not allowing the same business to own the means of production and the means to approve the product produced as safe for consumption is a no-brainer, the tougher question is: How can cannabis testing labs – which are privately-owned entities in each state that they exist – truly be independent if they are beholden to the ultimate goal of generating profit from their activities? Keep in mind that legal cannabis systems in every state are functioning without the federal standards and regulations to which other agricultural and manufacturing enterprises are subject. That means that these private labs are, for the most part, the primary guardian of public health and safety for the tens of millions of medical patients and adult consumers who can obtain cannabis legally in states from California to Connecticut. Nader commented on the privatization of services meant to serve the public good – rather than shareholders or owners – and alluded to the Volkswagon emissions scandal:

“Why do you think [the Volkswagon scandal] happened? It’s because under federal law, they allowed private labs to do the testing,” Nader said. “Watch out for control of these labs by your industry. That’s when the problems are going to start.”

It turns out that Nader was right again.

Last week, the Seattle Times analyzed a report that Jim MacRae, an independent data scientist, published on his blog. MacRae examined the results that cannabis growers received from the 14 testing labs licensed by the state of Washington. MacRae found that some labs were more “friendly” to their clients than others, revealing statistically improbable discrepancies in pass/fail rates for certain types of tests, in addition to some labs producing consistently higher potency test results than others. The analysis of testing results showed that, in regard to tests for microbial contamination, four labs did not fail any samples tested over a three-month period, while two other operations rejected 44% of samples tested as tainted. When testing for residual solvents – such as butane, hexane, and propane – in cannabis concentrates, five labs again failed no samples and another lab found 14% of the samples that it tested to contain residual solvents. MacRae also discovered that four labs provided results for THC potency that averaged 20.5%, while the average results at all the other labs ranged between 15.6 and 19.5%.

Reports from lab operators in multiple states have claimed that producers often seek out labs that provide favorable results – such as passing quality assurance tests or high potency scores – while labs that test stringently according to state requirements see business walk away. Dr. Rodger Voelker, lab director of OG Analytical in Oregon and outspoken proponent of effective testing standards, noted in The Oregonian that:

He is deeply troubled that the current state of pesticide testing is expected to remain in place until next spring. [Dr. Voelker] said he continues to see tainted products coming through his lab. Growers whose products are contaminated usually take their marijuana to other labs hoping for different results, he said.

In a related article, author Noelle Crombie – who provides extensive insight into Oregon’s cannabis industry and is always worth reading – noted that, “At least one lab admitted that it stopped testing for one common pesticide covered by current rules, saying failed samples hurt his business.”

Thankfully, Oregon recently passed new testing requirements, to go into effect in June of this year, that will test specifically for 59 chemical pesticides known to be employed by cannabis growers, in addition to requiring that lab staff, not the growers themselves, take samples and ensure chain of custody. Currently, producers provide their own samples to labs in every state with a regulated commercial system.

Still, the message is clear: Good test results that allow growers to pass state-mandated testing and market their product as higher-quality mean more business for the labs that provide those shiny gold stars.

To arrive finally in Colorado, much ado has been made about the ever-increasing number of recalls issued by the Denver Department of Environmental Health, which has pulled tens of thousands of units of edibles and concentrates tainted by illegal pesticides off of store shelves. On the other hand, when Cannlabs, the self-proclaimed leader in cannabis testing in Colorado, went out of business just prior to Thanksgiving of last year, its violations of state regulations were an easy-to-miss footnote in its obituary. However, the website New Cannabis Ventures obtained in October an Order to Show Cause issued to Cannlabs from the Colorado Marijuana Enforcement Division, citing the lab for an astounding 44 violations, many of which indicated that the lab was not really testing anything at all. What follows are screenshots from the Order, which is linked above. “Respondents” refers to Cannlabs.

Screen Shot 2016-01-14 at 7.25.03 PM

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And finally…

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Well, the above screenshot is not exactly the final word, as the document continues for another 30 pages. Additionally, I feel that it is notable that, instead of addressing these issues, Cannlabs was at the time launching its “Straindata” platform, where growers testing with Cannlabs could post their results online for potential customers to see. In the words of Cannlabs, “The ability for StrainData to scale into other legalized cannabis markets will drive additional revenue opportunities for CannLabs, Inc. It creates a platform from which dispensaries and growers will realize greater exposure for their CannLabs certified products.” In this statement one can clearly see the conflict of interest created by a testing lab purporting to advertise the products it is supposed to be analyzing. This screenshot of the most recent tweet from the Straindata Twitter account illustrates my point:

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The link in the tweet is now dead, but it previously sent the user to a page displaying the testing results from the product touted. One wonders whether they would so enthusiastically trumpet results for failed pesticide or microbial testing, assuming that they had at this point gained the proper state certifications to perform those screenings.

So, what is the way forward for cannabis testing in light of the revelations that have taken place as to its unreliability in three of the four major cannabis markets in the US?

(Colorado, Oregon, and Washington were discussed in this post; California is the fourth, and largest, but their medical market, including its testing labs, is largely unregulated at this time.)

In my opinion, monies from cannabis taxes should be devoted toward bolstering the capabilities of state departments of agriculture to test the production of licensed growers. State employees do not have a profit motive, and ag departments are already experienced in testing agricultural products for pesticides and other contaminants. Despite the reason behind my proposal, though, I realize that this country’s aversion to government and obsession with privatizing every sector of life makes it highly unlikely to be undertaken. In the absence of government testing, strict standards for labs must be put in place and enforced by the state and, eventually, the federal government.

While I do not know the full story behind Cannlabs, its violations, and its ultimate closure in Colorado, I feel confident in stating that it was a serious failure of regulators to allow a lab that had demonstrated the above infractions to continue operating for nearly a year after they were uncovered, knowing that the lab was providing testing services to the industry under the pretense that everything was above-board. Indeed, myself and my former employers used Cannlabs to test product for safety during the period delineated in the MED’s Order to Show Cause, as well as for a number of years prior, as the above order and information contained therein was not made public widely until the month prior to the lab’s closing. I now wonder whether the results we received over the years were worth anything at all.

While there are labs in the industry that are operating with sound scientific standards and ethical integrity – as is suggested by the labs that failed samples in Washington, as well as the comments of Dr. Voelker and others in Oregon – Ralph Nader’s warnings quoted at the outset of this article were indeed oracular. Based on the information contained here, it appears that – despite no explicit business ties to growers – some (again, not all) labs have come under the control of the industry so as to ensure their profitability as private enterprises. After all, the customer is always right, even when the cannabis they are submitting for testing may be dangerously contaminated.

 

 

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