As more recalls of cannabis products are performed and continued issues around lab testing occur, it is becoming more clear that off the shelf testing is a critical concept for the cannabis industry and its regulators to embrace. Several states have the authority to randomly test, but only states like Michigan seem to seriously use this tool to eliminate fraud. Recent recalls have demonstrated other states should follow their lead if they want to ensure consumer safety. This blog outlines what off the shelf testing is, what can happen if it’s not required, and what a model policy could look like.
What Is Off the Shelf Testing?
Off the shelf testing is as it sounds – it’s the process of testing products that are already manufactured and available for sale. Because off the shelf testing helps to ensure the products that are on store shelves are safe and effective for their intended use, this type of testing is very important for consumer safety in any industry. Off the shelf testing can also help identify any potential health hazards or product defects that might have been missed during the manufacturing process. For the cannabis industry, off the shelf testing presents one of the best opportunities to ensure that no contaminants (pesticides, solvents, heavy metals, or mold) are in products that are on the shelves.
Off the shelf testing is especially vital in states that have chain of custody issues.
Chain of Custody
Chain of custody refers to the documentation and processes used to maintain the integrity and reliability of the samples being tested. Chain of custody are problems with the collection, handling, transportation, and storage of samples.
In some cases, samples are presented to the laboratories for testing by their clients. Instead of the sampler having full control of how the samples are identified, the farmers or distributors themselves are. This creates a massive issue in chain of custody, as there is no guarantee that the product presented to the sampler for testing will match the product that is making it to the shelf.
Another common chain of custody issue in cannabis testing is the risk of sample contamination. Cannabis samples can easily be contaminated by external factors such as dust, air, or handling, all of which can affect the accuracy and reliability of the test results. It is important that appropriate and consistent collection and handling techniques are used to prevent contamination.
Another issue is the risk of tampering or mishandling of samples during transport or storage. If a sample is left in a hot or humid environment, it can degrade or alter in ways that affect the test results. Similarly, if a sample is mishandled during transport, it can be damaged or lost.
While off the shelf testing can’t prevent these chain of custody issues, it can minimize the risk from chain of custody issues by ensuring that all products on the shelf are eventually appropriately tested.
What Are the Risks of Not Having Off the Shelf Testing For Cannabis?
The risks of not having off the shelf testing of consumer goods, including cannabis, are significant and can impact public health and safety in a number of ways.
Exposure to harmful contaminants. This is the greatest area of risk, and recent recalls have made it clear that it’s possible for contaminants to make it to the shelf. Without off the shelf testing, there is a much greater risk that a variety of contaminants could be undetected. These include pesticides, heavy metals, mycotoxins, mold, and solvents used for cannabis extraction. Exposure to these contaminants can lead to a range of health problems, and those seeking medical uses of cannabis might be more at risk.
Inaccurate labeling. Without off the shelf testing, there is an even greater risk that the potency could be inaccurately labeled. Inaccurate labels could lead to consumers inadvertently taking more of a dose than they intended, which might lead to adverse effects. For example, a recent sample of 150 CA products found 87% had inaccurately high THC potency labels after retesting. It’s widely understood this mislabeling is the result of lack of enforcement like off the shelf testing. That opens the door for bad actors to fraudulently inflate stated levels of THC because, as we all know, higher THC levels yield higher prices.
Lack of quality control. Without off the shelf testing, there is a risk that there could be inconsistencies in the quality and composition of cannabis products. This could lead to variations in the effects of the product, which could be dangerous for consumers, particularly those who are new to cannabis or who are using it for medicinal purposes. Inconsistent product also has implications for consumer trust and branding.
Legal and regulatory risks. Without off the shelf testing to enhance audit programs, there is a risk that cannabis products could fail to meet legal and regulatory requirements. This could lead to legal and financial risks for producers as well as retailers. Case and point: consumers, upset about being defrauded and overpaying, recently filed five class action lawsuits alleging THC inflation this past year.
Undermines the legal market. The net result of all of this is legal cannabis markets are undermined. The main differences between the illicit and legal markets are legal markets ensure safety and accuracy in labeling and we generate tax revenue. If we don’t have basic controls like off the shelf testing in place, we can’t accomplish those goals, and the illicit market continues to prosper.
What Might a Comprehensive Off the Shelf Testing Program for Cannabis Include?
A regulatory audit program that would include off the shelf testing would not have a significant cost and not be complex. It would require minimal collaboration between regulatory agencies and the cannabis industry to implement spot checks and/or subcontract third party tests. Such a program would necessitate short, clear and consistent standards for testing, as well as a framework for enforcing those standards.
Legal Authority for Off the Shelf Testing. While the critical details of any testing program comes down to how it’s actually enforced by regulators, state agencies should be given clear authority to conduct random testing by their state legislatures (and mandated to enforce it). This may go without saying, but given that some states still don’t validate results.
Standards for testing. Regulatory agencies would need to establish clear and consistent standards for testing cannabis products for a range of contaminants, including pesticides, heavy metals, and residual solvents. These standards would need to be regularly updated to reflect new research and emerging risks. For example, Michigan allows their agency to conduct tests randomly, and Colorado allows tests randomly as well as whenever there’s reasonable concern of contaminated product.
Chain of custody and sampling procedures. Regulatory agencies would need to establish clear and consistent procedures for maintaining a chain of custody for samples and for selecting representative samples for testing. This would help to ensure the integrity of the testing process and the accuracy of the test results.
Labeling and packaging requirements. In many cases, regulatory agencies would need to establish tighter labeling and packaging requirements for cannabis products. Some current labeling laws allow for large margins of error. For example, California allows product labels to be within a 10% margin of error and Colorado allows up to 15%.
Enforcement mechanisms. Without proper enforcement, good rules don’t make a difference. Regulatory agencies would need to establish robust enforcement mechanisms and audit processes in addition to off the shelf testing to ensure compliance with testing and labeling requirements. Enforcement mechanisms include monetary penalties for non-compliance, or suspension or revocation of licenses.
A comprehensive off the shelf testing program for cannabis would require a collaborative effort between regulatory agencies and the cannabis industry to establish clear and consistent standards for testing, accreditation of testing laboratories, chain of custody and sampling procedures, labeling and packaging requirements, enforcement mechanisms, testing equipment and personnel, quality control measures, traceability systems, and compliance with labeling and packaging requirements. Such a program would help to ensure the safety and integrity of the cannabis industry, and promote public health and safety.