Deep Dive of the Week
TL;DR: How A Recall in Michigan put Contaminated product BACK on the shelves
What Happened: In November of 2021, regulators in Michigan recalled 64,000 pounds of cannabis due to testing irregularities – with much of the recalled cannabis returning to the shelves by the time the fight through the courts was finished.
Where We Are: The recall action itself is over, but Viridis is now mired in allegations of THC fraud. The lab is still exploring a possible lawsuit over damages, and the investigation by the state is ongoing.
Implications: Even when regulators can get contaminated product off the shelves, it’s not the end.
Deep Dive:
On November 17 of 2021, the state of Michigan issued a recall affecting over 64,000 pounds of products that had been tested by Viridis Laboratories. Over 500 provisioning shops reeled to comply with the massive recall – in addition to pulling products they were required to place signage alerting consumers of the recall for up to 30 days.
The recall cited inaccurate and / or unreliable results of tests from Viridis Laboratories for all products except for inhalable marijuana concentrate products (such as vape carts, live resin, distillate, and any other cannabis concentrate created through residual solvent extractions).tested between August 10, 2021 and November 16, 2021. The notice particularly warned that “Consumers with weakened immune systems or lung disease are at the highest risk for health-related incidents such as aspergillosis, which can impact lung function, if these potentially harmful products are consumed.”
Viridis, run by former Michigan State Police employee, Todd Welch alongside two other police veterans — former director of the Forensic Science Division CEO Greg Michaud, and toxicologist Dr. Michelle Glinn, moved quickly. News that Viridis had filed suit came just days later. Their complaint was that Michigan’s response was unjustified, prejudiced, and retaliatory. The Michigan Chamber of Commerce filed an amicus brief in support of Viridis.
Kevin Blair, an attorney with Honigman, LLP, asserted, “There is no public health or safety risk justifying the recall at all, and we respectfully request the Court to provide relief to Viridis and bring accountability and oversight to an agency that has far exceeded its authority.”
A few weeks after the initial recall, in early Decemeber, Michigan Court of Claims Judge Christopher Murray stated the MRA failed to establish that an error occurred. The judge wrote, “The evidence upon which the motion is based does not relate to any testing justification existing before the recall decision … and otherwise would not change the court’s balancing of interests.” The judge allowed product tested by Viridis North to go back on the market.
In the weeks following the judge’s decision, the MRA later claimed that some of the marijuana tested by Viridis North failed retesting after the judge’s decision. The agency estimated the contaminated cannabis could be among hundreds of “for sale” items at dispensaries.
Since the recall, 22 people have reported issues related to the recalled flower.
A few short months later in May 2021, the state filed a complaint regarding discrepancies in lab reports from Viridis that had been occurring dating back to December of 2020. An article in local Michican news titled Super potent weed spurs distrust in Michigan marijuana industry explored the complaint by the state, and how the state had been monitoring the situation for months, and that it regularly conducts proficiency testing – especially as the state was experiencing advertised total cannabinoid percentages up to 50%.
Other Headlines You Should Know About
Federal
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The Federal Trade Commission Warned Almost 700 Companies That They Could Face Civil Penalties if They Can’t Back Up Their Product Claims. Mentioned specifically in the press release from the FTC is the fact that ‘if a company makes a claim about the health or safety benefits of a product, that claim must be based on scientific evidence.’ While the release states, ‘the prospect of steep civil penalties will help ensure that advertisers don’t play fast and loose with the truth,’ it’s a reminder that it’s illegal to intentionally misrepresent or mislabel a product.
Colorado
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The peer-reviewed study titled ‘Uncomfortably High’ found that around 70% of products tested from the shelves in Colorado were 15% lower in THC than the labels specified. It’s beautiful work.
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A new recall has impacted 10 dispensaries for possible mold contamination. The products were sold between June 2022 and earlier this month, so consumers beware!
Georgia
Michigan
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Michigan posted pesticides approved for cannabis and hemp. The Michigan Department of Agriculture and Rural Development’s (MDARD) Pesticide and Plant Pest Management Division (PPPM) has created lists of pesticides that are approved for use on hemp and marijuana and will be updated over time.
New Jersey
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While not directly related to testing, it’s notable that New Jersey opted not to renew Curaleaf’s license. This is an ongoing story, as Curaleaf has stated they have done nothing wrong. On April 17, NJ CRC Board voted to approve Curaleaf’s license.
Oregon
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Oregon’s new-to-them aspergillus testing rules have caused woes. Harris Bricken put together an amazing piece of coverage of the issue as it stands.
South Dakota
Vermont
Washington
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There’s an ongoing and rather complicated situation going on in Washington following the state’s administrative hold on licensees in a specific region due to cannabis was testing positive for DDE, a remnant product of DDT. DDE is not one of the listed contaminants tested for by the state, and licensees may have been unaware of the issue.
What I’m Reading
United States: Product Liability In The Cannabis Industry: Insights From 2022 & Looking Forward
Twenty-First Century Illicit Drugs and Their Discontents: The Failure of Cannabis Legalization to Eliminate an Illicit Market | The Heritage Foundation (It’s always good to read the other side of an argument).