As a result of a legal challenge by the Oregon Cannabis Industry Alliance and cannabis cultivators in Oregon, the Oregon Health Authority’s (OHA) aspergillus fungus testing rule for marijuana, marijuana products, and industrial hemp concentrates and extracts has been withdrawn, and 2,500 pounds of marijuana plus 65,000 units of infused pre-rolls that failed aspergillus testing were released from administrative hold.
OHA’s original rule would have required testing for aspergillus using a qPCR or other DNA-based method. The plaintiffs that challenged the rule primarily took issue with its zero-tolerance policy for the presence of Aspergillus flavus, A. fumigatus, A. niger, and A. terreus. Industry advocates further contended that:
- No clear science supports a link between cannabis product consumption and aspergillus-related health problems.
- Aspergillus is prevalent in the environment at innocuous levels, and this strict pass/fail threshold is not required in other agricultural products.
- Aspergillus testing is subject to growing national skepticism regarding effectiveness.
- Significant inconsistencies in testing results add to the inaptness of the testing rule.
- The testing rule imposes heavy compliance costs on industry — burdens which OHA has disregarded.
In staying the rule, the Oregon Court of Appeals found that, “OHA was aware of less restrictive alternatives adopted in other states and, in adopting this rule, failed to find that those less restrictive alternatives are inadequate to protect public health and safety.” OHA subsequently withdrew the aspergillus testing requirement and issued a temporary rule providing procedures for testing of products that had failed under the more restrictive rule.
But other states’ aspergillus testing regimes vary from restrictive to permissive, since the industry and regulators have not yet established or agreed upon a national standard for aspergillus testing in cannabis. Zero tolerance policies for all or certain products are not uncommon across the U.S. Of the 22 states requiring aspergillus testing for cannabis products, 16 require that aspergillus is either “absent” or “not present” in at least some products. For instance, Colorado requires that aspergillus be “absent” from inhalable marijuana products. New York, California, and Michigan require that aspergillus be absent from all final-form adult-use and medical cannabis products.
Other states, however, apply a more forgiving detection threshold. For instance, Alaska allows a sample to pass if there is less than one colony forming unit (CFU) of aspergillus per one gram (CFU/g) in industrial hemp, marijuana, and marijuana products. Florida applies the same standard with respect to medical marijuana and hemp extract for human consumption. Oklahoma likewise applies this standard to medical marijuana and medical marijuana products, while South Dakota applies it only to medical marijuana in its natural state (not marijuana products).
Other states, such as New Hampshire, New Jersey, Pennsylvania, and nearby Washington do not require aspergillus testing at all.
Why It Matters
The differing approaches to aspergillus testing are a symptom of the legal cannabis regulatory patchwork across the states today. Without nationwide, federal testing standards, cannabis businesses must continue paying close attention to these state-level requirements, including their changes and evolution over time.
Our Cannabis Practice provides advice on issues related to applicable federal and state law. Marijuana remains an illegal controlled substance under federal law.