The California Department of Cannabis Control revoked a commercial testing laboratory’s permit a month ago after tests at state-run labs discovered a harmful pesticide in marijuana the private lab had cleared for sale.
Many industry operators and a national association of state regulators consider oversight at so-called “reference laboratories” to be a best practice that should be standard in all state-regulated marijuana markets.
Absent reference laboratories, some states contract private, third-party labs to verify licensed cannabis labs’ compliance with safety standards as well as the reliability of THC-potency results.
But more than half of the country’s biggest marijuana markets do not have a reference lab, according to analysis by MJBizDaily, a glaring gap that critics say raises major questions about product labeling and safety.
Marijuana labs ‘cannot govern themselves’
“The cannabis testing lab markets have proven over and over again that they cannot govern themselves effectively – regulators have to provide a strong structure of governance and enforcement,” said Sarah Ahrens, president of Trichome Analytical, a New Jersey-licensed laboratory.
With regulated marijuana sales that could exceed $1 billion in 2024, New Jersey is one of the states lacking a reference laboratory to verify the safety and potency results of regulated marijuana products, according to the Cannabis Regulators Association (CANNRA), an organization representing state marijuana overseers.
Such oversight is a basic requirement to build confidence in the regulated market and steer consumers away from illicit cannabis, Ahrens said.
“I 100% believe in having an unbiased, accredited laboratory that is not licensed in the cannabis market to provide oversight services to state cannabis regulators,” she added.
“Without that – like what is happening in California right now with the pesticide contamination and THC-inflation scandals, lawsuits (and a) drop in legal sales – a market can crumble.”
States lacking reference labs
Clean and safe cannabis was one of the promises used to sell marijuana legalization to a skeptical public.
However, allegations of “lab shopping,” in which retailers or product manufacturers seek a testing lab that will produce favorable results, have dogged the industry for years.
More recently, regulators have discovered faulty lab practices and taken action only after problems were revealed by reference labs.
As MJBizDaily reported, California’s Department of Cannabis Control has revoked the licenses of four commercial marijuana testing laboratories since December 2023 after running tests at two state reference laboratories.
Those labs, run by California’s departments of Toxic Substances Control and Food and Agriculture, discovered the commercial labs had inflated THC potency on batches sampled by as much as 50% and failed to discover banned pesticides.
The lapses by state-licensed labs led to subsequent product recalls and has shaken consumer confidence in product testing and labeling.
States with reference labs
According to CANNRA, the states that have regulated marijuana markets and are currently using a reference laboratory are:
- California
- Colorado
- Florida
- Iowa
- Maryland
- Montana
- New Mexico
- New York
- Oregon
- Utah
- Washington
- West Virginia
In Colorado, regulators set up a reference laboratory in 2017 “as part of deliberate efforts to mitigate risks of inconsistency and inaccuracy of test results in private labs,” Heather Krug, the regulatory programs branch chief at the State Public Health Laboratory, told MJBizDaily via email.
“This approach has led to improvements of the entire testing program, including the accuracy and defensibility of test results,” she added.
According to Gillian Schauer, CANNRA’s executive director, the following states are in the process of instituting reference labs:
- Delaware
- Illinois
- Michigan
- Minnesota
- Mississippi
- Missouri
- Oklahoma
- Vermont
“We’ve seen an increase in states setting up and opening reference labs – in part because they can provide important checks and balances on the third-party lab-testing system and because they allow states to test products directly to gain a better understanding of potential issues and to support inspection and investigation,” Schauer told MJBizDaily via email.
States with large populations, regulated marijuana markets and no plans to open a reference lab include:
- Arizona
- Pennsylvania
- Massachusetts
- New Jersey
- Ohio
‘Secret shopper’ oversights
According to some critics, having a reference lab or a state contract with a third-party lab does not guarantee lab oversight.
In Massachusetts, the state Cannabis Control Commission had contracted with AtoZ Laboratories, a private lab, to test products selected off of store shelves through a “secret shopper” program.
But, according to a Friday report by The Boston Globe, the lab says state regulators have yet to send in any products for testing.
Earlier this year, the Massachusetts Cannabis Control Commission (CCC) fined multistate operator Holistic Industries after the company allegedly “knowingly” sold cannabis contaminated during a mold outbreak.
Notably, the situation came to light only after a whistleblower alerted authorities.
According to the CCC, the company sought out a lab that would perform tests that would overlook the mold.
Without reliable labs doing independent verification, critics say, the potency and safety profiles printed on legal cannabis products simply cannot be trusted.
“We definitely have no such lab here,” said Jeff Rawson, a Massachusetts-based scientist and frequent critic of regulators’ lack of testing oversight.
“The CCC is one of the worst for ignoring real problems in testing, avoiding our demands for more shelf tests and not recalling failed products.”
In some states, reference labs don’t appear to be pulling products from the shelves of marijuana stores to test product labels’ veracity, which raises questions as to what they are doing.
In New York, the Office of Cannabis Management (OCM) has a memorandum of understanding with a state Department of Public Health lab at the Wadsworth Center in Albany.
However, “To-date, the testing conducted by Wadsworth has not been targeted at validating the reliability of permitted laboratory results,” OCM spokesperson Taylor Randi Lee told MJBizDaily via email.
“OCM has a regulatory framework in place to promote the integrity of the laboratory testing that is conducted such as demonstration of laboratory capability for receiving testing approval, proficiency testing, ISO accreditation requirements, and on-site inspections,” she added.
Lee did not respond to further questions.
Reference lab costs
In New Jersey, medical marijuana was tested by the state-run Public Health and Environmental Laboratory (PHEL), which ceased testing cannabis after the state began licensing private labs.
Ahrens said she is among the lab operators who “pressed the New Jersey Cannabis Regulatory Commission many, many times to use PHEL as a reference lab to better govern the testing market.
“But the CRC has not made moves to enable (PHEL), and the excuse we’ve been given is that the CRC does not have the funds available to pay PHEL for such services.”
Chris Roberts can be reached at chris.roberts@mjbizdaily.com.
