In the Eye of the Storm: OR Cannabis Testing and Aspergillus Regulations

Aspergillus testing has been on my mind quite a bit lately and I’m not alone – it’s been prominent on the minds of Oregon’s cannabis industry ever since new rules went into effect in March. The rules updated Oregon’s cannabis testing to include heavy metals and microbiological testing. Originally they were to be implemented in January, but there were delays. I know that, in particular, because I attended the meeting where these rules were discussed. It was an eye-opening experience. 

Apparently this was a particularly difficult rule to implement – not just from the administrative side but for the laboratories as well – and many were racing to be certified to test in time for the implementation date. This put a time crunch on farmers and producers to get R&D samples performed ahead of time to find out if they would be compliant. When the rule first went into place, messages started flying about high failure rates, and testing results that left farmers puzzled.

Industry associations reacted by attacking the rule from a variety of angles. Their arguments included: (1) the testing was too stringent, (2) testing and remediation companies had suggested changes to the language, (3) only the immunocompromised were impacted, (4) that there were too many farms failing, and (5) the fungicides used to combat mold would be worse than the mold itself.

I thought there’d be no better time than the present to explore all of these statements!

Too Stringent? State by State Comparison of Aspergillus Requirements

First, let’s look at what Aspergillus testing, in particular, looks like across the US. 

Map Source Data:

Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming District of Columbia

The data itself looks a bit like this.

As you can see, 16 states require that there be no Aspergillus detected, or that aspergillus be absent from a 1 gram sample for it to pass. This includes large states like California, legacy states like Colorado, and emerging markets such as New York.

In 11 other states, it’s instead Total Yeast and Mold that are examined (anywhere from 100 to 10,000 CFU per gram). Other states only look at aspergillus inhaled products. As Oregon’s regulations stipulate that a 1 gram sample should be absent of the four strains of aspergillus, it looks to be in line with the rules from 15 other states. 

Too Stringent? Count that Aspergillus Alive or Dead

Another issue that some producers and farmers had with the testing was that the test would detect the mold regardless of whether it was dead or alive – and after this article from Vince Sliwoski, I didn’t concern myself with this argument too much because it didn’t feel substantial.

However, I did contact one of the testing companies that provides microbiological services and asked them for specifics about what that could mean. Their salesperson explained that often the process of enrichment, which is when they grow cultures from the sample, eliminates a lot of the dead aspergillus that is present. 

I don’t know if that is any comfort to a farm that is facing a possible failure.

Only the Immunocompromised Are Impacted

I am immunocompromised, so I am a bit biased in my reaction to this argument. I’ve explored this one in depth before here. It is surreal to plead with the cannabis industry for recognition as a person when the industry was built on the pain and suffering of many immunocompromised. It’s especially egregious in Oregon for producers to turn their backs on large portions of the medical community, as medical cannabis isn’t tested at all. 

There are several studies that involve sick patients getting aspergillosis from cannabis (onetwothree). It’s known that aspergillus is still present after dry herb vaporization – so while it’s uncomfortable for producers that didn’t have to meet this standard before, it’s important that cannabis be tested for aspergillus.

Testing and Remediation Companies Lobbied for Changes to the Language

You can see that many people recorded testimony to the state regarding the final rule language.  All of this was happening around the time that they were changing the batch size from 15 to 50. Of particular interest to those arguing that the regulations were worded by special interests for remediation and testing, are the statements from PathogenDx, Medicinal Genomics, and VIST.  And while these businesses made sure their voices were heard, so did many farms.  

There are several lobbying organizations for cannabis in Oregon that include farms.  One of them, Oregon Cannabis Association, recently lost its leader Amy Margolis as part of the ongoing set of destabilizing cannabis scandals in Oregon. I’ve written extensively about the Oregon testing industry – and it’s only becoming more storied.

While the presence of aspergillus is a failure, there are ways for companies to remediate cannabis that has been exposed to aspergillus so that it will pass. These methods include irradiation, cryoremediation, chemical remediation, ozone, and UV. Each of them has their drawbacks and all of them have the possibility of impacting the efficacy and experience of cannabis, depending on someone’s needs.

While in my article I suggested that if ‘aspergillus-free’ was too difficult for producers to maintain, perhaps the aspergillus levels should be reporters on the labels. A reader emailed me in response to my article about mold issues in Oregon, and suggested that a possible way forward might be to add remediation steps to the label, so that customers would know what they are buying.

Too Many Farms Failing

I understand the alarm when the rumors first circulated. The numbers being talked about were as high as 38% for prerolls, which is scary for a market that is already dealing with oversaturation. It was also concerning that the farms that use no-till / organic methods are the ones that are the most impacted. As more information was revealed a couple of weeks later, those numbers dropped, and Willamette Week reported around 15%, and Harris Bricken reported around 20%.  

The fungicides used to combat mold would be worse than the mold itself.

This is definitely a concern, and I would hope that in states where testing for aspergillus has been implemented, that it would include testing for the fungicides that might be in use. 

If you have any fungicides in particular that you know of that should be a concern, let me know – and I’ll add them to the suggestions below!

Small Farms are Hit Hardest

Like many of the regulations around testing, the farms that are impacted the most are the small farms. This especially impacts small-batch, craft cannabis farms,and this comes at a time when the overall cannabis economy in the state is perilous. 

I understand the difficulties in changing processes and spaces to accommodate for this sort of rule. But ultimately, if Oregon is looking to sell their cannabis across state lines after federal legalization, it’s important that their testing regulations are inline with other states.

What can be Done to Improve Future Aspergillus Testing for Cannabis?

Many legacy states, including California and Colorado, have implemented rules which directly address aspergillus and will fail for any presence detected. For states that are creating new cannabis laws, Oregon provides a cautionary tale about ‘enacting regulations later,’ especially when it comes to equity. It’s also important that fungicides and other remediation efforts be examined for consumer impact, and make additions when appropriate to ensure dangerous chemical fungicides aren’t on cannabis that would harm consumers and patients.