Coalition of cannabis testing labs pushes for uniform standards

An oft-heard truism about the cannabis industry is that if you send five labs a cannabis sample, you’ll get five different results back.

Not only do labs vary in their testing methods, requirements for testing cannabis before it hits the shelves can vary greatly from state to state. Massachusetts requires testing for nine pesticides, for example, while Oregon requires testing for 59 pesticides, according to a new report by the National Cannabis Laboratory Council shared exclusively with POLITICO.

NCLC was formed by the law firm Perkins Coie and represents six labs and 40 ancillary businesses covering more than 15 state marijuana markets. The report lays out the group’s recommendations for a harmonized testing scheme to align the patchwork of requirements that have sprung up in the absence of federal oversight and a lack of research into cannabis contaminants.

The group hopes to help establish “standards that will facilitate interstate commerce, knowing that [federal legalization] is going to happen with or without us,” said Elisabeth Berry, chief operating officer of PSI Labs, which operates cannabis testing labs in Michigan and California. “We want to be part of creating a better framework for the future, not responding to it reactively.”

The details: The report offers detailed recommendations on what regulators should be testing for when it comes to cannabinoid and terpene content, as well as a variety of contaminants including microbial, mycotoxins, residual solvents, heavy metals and pesticides. It also offers recommendations for shelf stability, water activity and moisture content testing, which can help ensure that contaminants like mold do not develop while products are sitting on the shelf.

The report also recommends that the federal government require cannabis testing labs to gain an international accreditation upon federal legalization.

But lab testing issues go beyond aligning the contaminant testing requirements between states. Other industries have manufacturing guidelines like current Good Manufacturing Practices, Good Agricultural Practices and Quality Management Systems, which can help determine requirements for how products are sampled for testing. Collecting a representative sample poses challenges for cannabis testing, since potency and contaminant levels can vary widely throughout a single batch.

Implementing such systems and processes “would require cultivators and manufacturers to actually look at their process from start to finish [and] do some testing and monitoring along the way,” said Alena Rodriguez, managing director of Rm3 Labs, which operates in Colorado.

The current model of relying on labs to catch noncompliant products at the end of the supply chain — right as they’re about to be sold to customers — is more challenging for regulators in the end.

Indeed, cannabis testing labs have faced controversy over inflated THC values and deflated contaminant values as they have a financial incentive to please their cannabis company clients, according to Berry.

That’s led to a “lab shopping” phenomenon where cannabis companies seek out labs where their products are more likely to pass testing requirements. When labs act as a means of enforcement for state regulators, “it sets up a manufacturers conflict with laboratories and their clients,” Berry said.

Requiring testing and quality management during the production process helps makes labs and cannabis companies work together in a more collaborative way.

Missing data: Even though action limits — the specific amount of a contaminant needed to trigger a failed test — varies widely between states, the report eschews recommending specific limits. Due to a lack of data and research in the space, the report recommends that regulators follow a certain procedure to regulate pesticides.

For example, when the EPA creates pesticide action levels for potatoes, the agency assesses how many potatoes the average American consumes, but also consumers’ average exposure to a certain pesticide that they might be getting through a variety of foods, Rodriguez explained.

“There’s very little consumption data [on cannabis] out there,” she said.

Future impact: The current patchwork of state lab testing regulations will cause headaches if the federal government legalizes marijuana, thanks to the dormant commerce clause.

For example, a producer in Colorado may be unable to sell products in California because it doesn’t meet California’s testing requirements, which is sure to trigger litigation.

“We want to avoid a situation where … interstate commerce has stalled because there are lawsuits all over the place,” said Andrew Kline, senior counsel at Perkins Coie.

Meanwhile, representatives for NCLC caution that they’re recommending a slow rollout of GMP requirements for the cannabis industry, given how costly they are to implement in an operational facility.

While many cannabis businesses may balk at the cost of GMP compliance, Rodriguez points out that federal legalization would ease financial burdens on the cannabis industry like the lack of access to capital or sky-high federal tax rates due to section 280E of the federal tax code.

What’s next: NCLC is urging all types of cannabis businesses to share data in hopes of advancing a harmonized testing scheme. Labs can share anonymized data on what contaminants they’re finding in certain product categories. Cannabis cultivators and product manufacturers can help with consumption data. And researchers and clinicians can help provide human health assessment and toxicology data.

“We would love to see national datasets have really transparent, full panel, testing results that [researchers] can … download and work with,” Berry said.