ALBANY — Last week, after they were confronted with lab results showing New York cannabis products had significantly less THC than advertised, state regulators revoked a stop-gap testing measure they’d designed to speed up the recreational market’s kickoff.
The shift came after NY Cannabis Insider shared lab tests with state cannabis regulators which showed that five of the eight highest-potency strains of legal marijuana in the state’s fledgling retail industry contained at least 25 percent less THC than their labels indicated.
New York, like many other states, had allowed retailers to advertise the anticipated potency of the marijuana produced by certain cannabis seeds rather than testing the actual THC levels in the products. But the true potency of marijuana can vary based on many factors, including growing conditions.
The now-mandatory alternative — testing each lot of smokable flower — could significantly raise lab costs for small growers and processors.
While the state originally instituted a temporary “line testing” process designed to simplify labs’ analysis, allowing suppliers to get cannabis flower and pre-rolled products on store shelves without testing for potency, last week they reversed course after being faced with the results shared with the state by NY Cannabis Insider.
State regulators had rubber-stamped the first labs to test recreational marijuana products in November, adding new approvals in the months that followed. There are now 13 lab license holders, some of whom have yet to ramp up their operations.
“Effective immediately, line testing will only be permitted for products that are not flower or pre-roll products,” said an email addressed to “all conditional cultivators and processors” from the state Office of Cannabis Management’s compliance unit. It was send a day before the NY Cannabis Insider story was published that revealed the THC levels of eight of the highest marijuana strains they had tested at a state-certified laboratory.
But the change won’t apply to many products already on their way to labs or retailers: “licensees who already submitted requests to OCM for line testing of flower or pre-roll products and received OCM approval for the line may submit those lots,” the email said.
Questions about the strength advertised in marijuana strains comes as New York is reconsidering its “potency tax,” which takes a larger cut from products with higher levels of THC. More potent marijuana also sells at a higher price. Lawsuits have been filed in California and Arkansas targeting producers and labs for conspiring to fake their numbers. New York may not be far behind, and cannabis attorney Jeffrey Hoffman said he expects “the lawsuits are coming.”
But both Hoffman and Bob Miller, the chief scientific officer for licensed tester ACT Laboratories, pointed to another reason potency advertising for early New York harvests could have gone awry: the particulars of growing weed outdoors in New York.
In a bid for efficiency, the state’s line testing system had previously allowed cultivators and processors to combine various batches and strains of buds from their harvest. They could then send in the combined batch to test for contaminants like heavy metals and fungi. But since these batches of cannabis flower would include strains with different cannabinoid profiles — compounds such as THC with psychoactive and medicinal properties — the testing for THC levels would have been pointless.
Businesses were instead allowed to market the bulk-tested weed using the potency that their seed vendors had predicted for each plant.
Freeman Klopott, a spokesman for the Office of Cannabis Management, said the agency is now nixing the system “due to a greater than expected variability of potency testing for flower that doesn’t exist for concentrates and edibles.”
“After months of conversations around how best to test flower products and analysis of data from the market, we have concluded that each lot on the market should be tested for potency,” Klopott said.
Miller began working at ACT Laboratories after a career in the less-variable pharmaceutical industry, and knows the difference well. The company’s New York facility in Ballston Spa has also been testing medical marijuana in the state for years.
“Even if I go on the same plant and test different buds, those different buds may give me different results,” Miller said, noting that the range is even more significant when you look at potency estimates for seeds imported from other states, where growing conditions are different.
“It’s the water, it’s the nutrients, it’s the temperature, it’s the humidity. It’s a living, breathing thing, so you’re going to have that inherent variability,” he said. “You’re not dealing with pure compounds. You’re dealing with Mother Nature.”
But all eight marijuana samples sent for blind testing by NY Cannabis Insider turned up lower levels of THC than what vendors were advertising: none were under-selling their potency. In the most extreme case, a package advertised flower that had 28.5 percent THC, and the lab found it only contained 17.7 percent. That variability impacts consumers, even if the producers were all compliant.
“At least in our current cannabis space, it’s all about the highest THC level that sells. People just see numbers,” said Hoffman, the cannabis attorney, even though “we know that is not the number one thing that affects your experience.”
Hoffman noted that though consumers are likely to trust what is on their packages, those with less experience are more likely to try products like gummies that are easier to test reliably.
Line testing of the bulk-produced items, both concentrates and edibles, will still be allowed under the updated rules.
But the change could make things more complicated for the state’s first legal cultivators, former hemp farmers who grew much of their crop outdoors last summer and have been waiting for more labs and retail shops to open. The state has only four stores in operation nearly two years after recreational use and possession were legalized for adults and the framework of the retail industry was established.
Allan Gandelman, president of the Cannabis Association of New York and a cultivator himself, worries about the cost of the change for some already overstretched farmers.
“A lot of these smaller cultivators are just getting ready to come to market, and this really increases the cost of testing for them by a lot,” Gandelman said, explaining that with line testing in place they could have combined five strains in one batch; now the testing will cost them five times as much.
But in the case of ACT Laboratories, Miller said the change will make little difference in the number of tests they run. He said many of their combined “line test” samples had been turning up contaminated lots. When that happens, the lab splits up the lots and tests them each individually; instead of charging a business for five tests up front, they would charge it once for the combined test and again for each re-test.
“If you had those types of events, the actual amount of testing you did was larger,” Miller said, noting that many of the new growers and processors have been facing such partial contamination, among other “growing pains.”
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