Where are the new testing rules and where are people tripping?

The new rules are woven into OAR 333-007-0300 et seq. which covers “Marijuana and Hemp Testing.” (See also OHA’s page with various resources here). The OAR sections that took hold on March 1 center on testing requirements for 1) heavy metals and 2) microbiological contaminants. People are tripping on the latter, and specifically on testing for aspergillus (not so much with salmonella, nor ecoli).

What’s aspergillus?

It’s a mold, which is a type of fungus, and it can cause a condition called aspergillosis when inhaled or introduced through a cut in your skin. A short hike around Google images should convince you to try to avoid aspergillosis.

There are 180 or species of aspergillus. In Oregon cannabis, we are screening only for four of them: pathogenic aspergillus flavus, fumigatus, niger and terreus. Apparently the rest are not so terrible.

How many licensees are failing these tests?

If you’re on social media or you’re getting the types of emails I am, you’d think the answer is “pretty much everyone.” Which would be misleading. However, failure rates are relatively high based on early data. I confirmed this on Wednesday afternoon via a phone call with OLCC (I won’t name my contact; he is begging for mercy due to call volume). Anyway, here is some data he shared:

• As of 04/12, there had been a 2.7% overall fail rate for microbiological contaminants (all aspergillus)
• As of 04/12, the fail rate for flower was closer to 4.5% (all aspergillus)
• As of 04/12, the fail rate for pre-rolls was highest — as one might expect — at closer to 20% (all aspergillus)

I’ll emphasize again that this is early data. The above percentages represent an aggregate of roughly 50 failed tests. No one seems to be failing for heavy metals, or ecoli, or salmonella. In all, the vast majority of samples are passing. Same with R&D testing for aspergillus.

Is Oregon’s testing requirement too tough?

It’s probably not too tough. I know people may not want to hear that (and in full disclosure, we represent this company and this company). However, testing cannabis for aspergillus, along with other microbiological contaminants, has become a national standard of sorts.

States take different approaches on the testing protocol. Some states, like New York*, take a “total yeast and mold” approach, which produces higher fail rates. Those states may also be testing for more species of aspergillus. Oregon’s testing protocol for aspergillus is not yeast and mold, but a “qPCR analysis or other DNA-based method that has been certified by an independent scientific body.”

What’s all this about live spore versus dead DNA aspergillus? How much aspergillus is too much aspergillus?

Without getting into the chemistry of things, and despite some of the noise on social media, “dead versus alive” seems like a nothingburger. The qPCR test is simply looking for the presence of aspergillus spores or colonies. The test doesn’t make “dead or alive” distinctions, and dead aspergillus can also be noxious in any case.

As to that second question, I had one client claim that a lab was making subjective determinations by only failing slides with an “abundance of contamination.” I don’t know if that’s true. However, OAR 333-007-0390(2)(a) provides that the presence of “any” aspergillus should result in a failed test.

Is this a higher hurdle than other required pesticide testing in Oregon cannabis?

Maybe, maybe not. It’s an apples and oranges thing. In the early days of Oregon cannabis testing, we saw fail rates of ~3% for pesticides. People adjusted, and the rates dropped to ~1.5%. They have hovered there ever since. My guess is we will see a similar trend with aspergillus.

Is the aspergillus testing standard harder on indoor or outdoor growers?

I’ve heard different things on this. One client wrote me that “it could be impossible for outdoor growers to pass the new testing standards.” Conversely, a lab tech told me “indoor grows tend to be moldier than outdoor, so aspergillus would be more prevalent there.” These are generalizations, of course: each grow is unique; and set-ups vary widely in the broad categories of “indoor”, “outdoor” and “mixed canopy” (to use the Oregon administrative terms). Ultimately, it doesn’t matter. No aspergillus allowed.

Could the rule be overturned?

No chance. I like to challenge the agencies on rules that don’t make sense but again: a) this is as close as you might see to a national standard in cannabis, if such a thing could exist, and b) it’s a public health issue. The early rate of failures based on a limited data set is unfortunate; but it was also predictable. And the prevalence of failed tests will diminish as people adapt.

How will licensees adapt?

One client told me, “We’ve always had three steps with the grow: you grow it, you trim it, you dry it. Now it’s four steps: you also treat it.” Time will tell if Oregon’s hapless producers bear the brunt of this cost, or if the burden can be passed along the supply chain to or toward consumers.

Time will also tell as to how licensees opt to “treat” their cannabis. Most growers will probably opt for pasteurization; some may be willing to radiate their flower. Again, time will tell. For now it’s time to adapt.

Re-published with the permission of Harris Bricken and The Canna Law Blog