Fifteen years after Colorado voters ushered in medical cannabis, Governor John Hickenlooper declared “zero tolerance” of any off-label pesticide on cannabis. This started a wave of confusion and unnecessary expense for cultivators that still exists. While any other farmer in the United States can depend on the Department of Agriculture (USDA) to develop, educate and enforce guidelines for safe and successful crop production, the USDA is unable to help cannabis producers for fear of violating the mandates of the Drug Enforcement Agency and federal government. This disconnect between cannabis professionals and their local, state and federal governments resulting in startling profit losses for producers and unclear consumption guidelines for consumers.
Well before cannabis was legalized in Colorado, the Environmental Protection Agency (EPA) regulated the uses of pesticides in agricultural products. You may be familiar with the language used regarding pesticides: “It is a violation of Federal law to use this product in a manner inconsistent with its labeling.” In other words, the label is the law, but the enforcement of the use of a product is left up to the USDA.
From 2010 to 2015, with no direction from local or federal agencies, the legal cannabis producers in Colorado killed pests in the best way they knew how: with commonly used agricultural pest controls. These pest controls violated labeling use because they were used on a federally illegal crop in violation of the labeling; no labels say, “for use on cannabis plants…” Most cultivators had bigger concerns; federal laws for cultivation have landed more than a few unlucky cultivators with long prison sentences. Violating a label on a bottle seemed like a small risk to take. However, the catch-22: Cultivators are in violation of the EPA guidelines and the USDA has little to no guidance on the use of pest control methods as they relate to cannabis.
After Governor Hickenlooper’s November 2015 decree regarding zero tolerance use of pesticides, Denver Environmental Health (DEH)—an organization whose primary responsibility is to conduct restaurant inspections—began to enforce federal labeling guidelines on a plant not recognized by those same agencies. Without any training for Denver health inspectors, DEH began sending inspectors into cannabis grows with checklists intended for commercial kitchens, with the heading “Food Establishment Inspection Report” and categories like “Equipment inadequate to maintain food temperatures” and “commissary records”. Since beginning that practice, DEH has passed out harsh punishments for cultivators in violation of EPA labeling guidelines in the name of public health. These punishments include public shaming in the form of a press release, destruction of plants and finished products, issuing of subpoenas for other test results and tracking of trim that may have failed a test.
Colorado already had a number of laboratories certified by the state to provide potency and microbial testing. Believing that a lab is a lab, the DEH started to rely on pesticide tests provided by a lab co-founded by one of its own former employees. This lab is not certified to test for pesticides, nor does it have the same equipment or equivalent standards to calibrate the equipment as the USDA. However, that did not deter their desire to make a fast buck off cultivators who were faced with months of being placed on hold or pay marked up prices for expedited tests that were deemed “good enough” for an agency that knows next to nothing about agriculture, pest control or its effects on humans.
Worse, DEH needed a way to show that cultivators were in violation of EPA guidelines; they had to test the plants to show off-label products had been applied. As luck would have it, the only agency capable of testing plant material for off-label use happens to be the reluctant USDA. They were not teaching how to cultivate, they were just proving that cultivators were in violation of the law, a commonly held belief at the federal level.
The USDA was not ready for the onslaught of tests that were necessary to prove off-label use and one investigation could require hundreds of tests. In the name of public health, cultivators were placed on “hold,” meaning they cannot transfer or sell any plants until their innocence is proven, which is a process can take several months.
Today, Colorado has a governor who believes in a scientific “zero” standard for pesticides that does not scientifically exist, a rogue city agency bent on enforcing regulations beyond its scope or understanding supported by an uncertified lab that cannot produce repeatable results holding cultivators to standards that the USDA does not share.
We have to be able to do better than this.
The people of Colorado voted the legal cannabis market into being. This means that the government organizations responsible for protecting public health need to update their forms, train their staff, provide plant tests from a qualified agency like the Department of Agriculture in a timeframe that does not put unfair strain on the cultivator while they wait for results and stop using uncertified laboratories with questionable motives and ties to the very enforcement agency, DEH, that hands down the violations. This would be a fantastic place to start.
Editor’s Note: The author, Tim Cullen is the CEO of Colorado Harvest Company, a Denver-based cultivator, and retailer of legal recreational and medical cannabis. Colorado Harvest Company has gone through two such investigations in the past two years. Both triggered by the same “laboratory” that provided false positive tests for off-label use of pesticides that resulted in DEH investigations that were later cleared by the USDA because there was no evidence of any off-label pesticide use found on any plants in either investigation.
Beginning in September 2015, the Colorado Department of Agriculture has awarded perfect scores for purity on all of the hundreds of tests it performed on Colorado Harvest Company cannabis. Because of that, Cullen represents the industry on the Colorado Department of Agriculture’s Private Advisory Group where he shares his expertise to help other growers.On behalf of the CDA, Cullen led an educational tour focusing on clean cannabis production.for representatives of 22 agriculture officials from other states in January 2017.