Weed Regulation: States Are on Their Own

A sample of cannabis undergoes testing for potency, pesticides, mycotoxins, and mold and fungus at Steep Hill Halent Laboratories in Sacramento, California. The company has expanded its operations to labs in Berkeley, California, Seattle, Washington, and other cities. JOSE LUIS VILLEGAS/ZUMAPRESS/NEWSCOM

This article, written by Assistant Editor Alicia Kort, was excerpted from Newsweek's Special Edition, Weed 2016: The Beginning of the End for Pot Prohibition.

In 1937, a product called Elixir Sulfanilamide hit pharmacy shelves. Advertised as a cure for strep throat, the untested drug contained some of the same ingredients as arsenic, and more than 100 people died as a result of its use. Fortunately, the Food and Drug Administration took swift action and pulled the deadly concoction from shelves. Since 1906, the federal government has been the best defense against harmful consumables finding their way to the public by establishing clear standards for safety and creating a rigorous system of testing and quality control to ensure everything from a candy bar to a bottle of aspirin meet those standards. Even though some states have chosen to legalize cannabis use, the plant—considered medicine by many—isn't regulated by the government because the federal government doesn't approve of its use for any purpose.

Douglas C. Throckmorton, the deputy director for regulatory programs for the FDA, said in testimony to the United States Senate in June 2015 that historically the organization has followed the Drug Enforcement Agency's recommendations to stay away from Schedule I controlled substances. The Environmental Protection Agency, which typically tests food crops for dangerous toxins, also won't commit resources to ensuring the safety of a plant the federal government has deemed illicit. As a result, on the state level, hundreds of thousands of cannabis enthusiasts are legally purchasing the substance at their local dispensaries without knowing anything about the chemicals that might have been used to grow it.

With the illegal status of cannabis keeping federal agencies from performing their normal duties, states where residents are allowed to use cannabis have had to step in to do the best they can to ensure the basic safety of the crop. Most states have been reacting to public complaints rather than being proactive in their policymaking, and they also lack the monetary resources and power that federal agencies have. The only real tools the states have to work with are independent labs, which are given state licenses to test for contaminants and potency. But lab results can be inconsistent and because cannabis hasn't been subjected to the years of clinical trials and testing the FDA puts a more conventional drug through, there are huge gaps in our knowledge in terms of the plant's safety.

Colorado, the first state to legalize recreational marijuana use, provides a perfect example of the patchwork solutions states have to cobble together without federal regulation of cannabis.

Currently, marijuana in Colorado is tested for fungus, metal and potency, but last year the state attempted to develop a system for pesticide testing. Colorado Governor John W. Hickenlooper issued an executive order on November 12, 2015, giving several state agencies, including the Colorado Department of Agriculture, the power to destroy marijuana sprayed with an "off -label" pesticide, or a chemical not approved by the EPA to spray on a particular crop. Since the EPA hasn't conducted any tests on which pesticides are safe for use on cannabis, the state was forced to guess that the least toxic and harmful pesticides used on food crops would also be safe for cannabis—an assumption not backed by any hard data. But while the state outlawed certain pesticides, it failed to mandate a system to randomly test cannabis crops for those pesticides. This burden fell to local governments, such as the city of Denver, willing to take up the cause of ensuring growers followed the pesticide requirements laid down by the state government.

"By the beginning of 2015, Denver had been getting complaints and concerns, mostly from the Fire Department, who would go out and see these pesticides sitting around," says cannabis business attorney Sean McAllister. "The Fire Department had the draft list of acceptable pesticides. They saw these pesticides that weren't approved sitting around, and they raised concerns to the Health Department." Eventually, city officials from Denver began raiding the offending farms and destroyed hundreds of cannabis plants, an act that provoked four growers (represented by McAllister) to sue the city, claiming Denver officials had overstepped their bounds. The ensuing legal and bureaucratic quagmire has made only one fact clear: Nobody in Colorado knows who is responsible for testing cannabis crops for potentially deadly pesticides, and the situation doesn't look set to resolve itself anytime soon. "Every state that legalizes cannabis will need to address the pesticide contaminant issues to protect public health," McAllister says. "I just think it's unfair for individual owners. They're being made the guinea pigs in this system and suffering huge financial losses due to the lack of clarity in the rules."

While Colorado has been making the most cannabis-related headlines in recent months, in terms of regulation, the state with the most experience dealing with cannabis is California. For more than 20 years, medical marijuana has been legal in the state but until recently, there were no regulations related to pesticide use on the books. "Right now, unless you know the farmer who is growing the medical marijuana or how your medical marijuana is sourced, it's next to impossible to trace back what kind of fertilizer or pesticide is being used in the grow cycle of that bud," says Democratic State Senator Mike McGuire, who led the charge to rectify the issue more than a year ago by introducing a medical marijuana regulation bill to the California State Legislature. On October 9, 2015, California Governor Jerry Brown signed McGuire's Marijuana Regulation and Safety Act into law. The act establishes a Bureau of Medical Marijuana Regulation, creates 17 local and state licenses that everyone from cultivators to dispensaries need to apply for and also creates a statewide seed-to-sale tracking system. The law also designates cannabis as an agricultural product, which means it will fall under the same pesticide regulations as food. The Safety Act establishes a much-needed lab-testing program, as well, and will require dispensaries to label their products with THC levels. Every element of the law will be in place by the end of 2018.

While California has finally tackled the pesticide problem with formal legislation, it took the state's legislature nearly two decades to confront the issue with far-reaching action—and residents in other states are beginning to wonder if their own lawmakers will take as long to propose meaningful solutions. As voluntary, pesticide-related recalls take place in cannabis-friendly states, even local growers who want to be proactive in ensuring product safety have a hard time knowing where to turn. During Colorado's battle against pesticides, the EPA suggested growers apply for "Special Local Need" risk-assessment testing, according to an International Business Times article published in June 2015. However, it remains to be seen when—or if—the EPA would accept these forms from marijuana farmers. For its part, the FDA is currently studying cannabis for specific medicinal purposes and will, according to the agency website, "continue to facilitate the work of companies interested in appropriately bringing safe, effective and quality products to market, including scientifically based research concerning the medicinal uses of marijuana." But until these agencies are given the permission to regulate cannabis the same way they would any crop or pill, those states—as well as their residents—who have progressed beyond the federal government's position on the plant, are on their own.

This was excerpted from Newsweek's Special Edition, Weed 2016: The Beginning of the End for Pot Prohibition, by Issue Editor James Ellis. For more on Marijuana in 2016, pick up your copy today.

Weed 2016
Nugshots. Digital Imaging by Eric Heintz.