NY’s testing failures expose legal weed consumers to unsafe cannabis; a ‘serious health threat’

A NY Cannabis Insider investigation has uncovered systemic public health failures at every level of the state’s legal cannabis industry, from farmers to labs to state regulators, that experts say may pose a serious health threat to consumers.

Top-selling weed strains, available at licensed dispensaries from Western New York to Manhattan, contain microbial levels 10-250 times higher than what’s allowed under the state’s rules for medical cannabis.

“The majority of these products should not have been allowed to be sold to consumers and may pose a serious health threat,” said Sarah Ahrens, founder and CEO of New Jersey cannabis testing company True Labs for Cannabis.

Among NY Cannabis Insider’s findings:

• The state’s requirement that weed be grown outside – and not indoors – has led to high levels of bacteria, yeast and mold among products that experts say should not reach consumers.
• Despite its public health and safety mandate, state regulators have maintained a relatively hands-off approach to enforcement and have left it up to farmers – who are struggling to survive – to decide whether their products are safe.
• Dozens of publicly available test results show state-certified labs have consistently broken the rules for reporting pesticides, heavy metals and other contaminants.

A marijuana bud, or flower, is ready for processing June 17, 2021, at the Greenleaf Medical Cannabis facility in Richmond, Virginia.

A necessary medical notice at this point: Health risks associated with smoking or consuming contaminated weed can include allergic reactions, sickness and, in extreme cases, death. Those most susceptible to pesticide and microbial contaminants include women of reproductive age, immunocompromised patients with cancer and HIV, and patients with seizures and epilepsy.

The Office of Cannabis Management is responsible for the rules around adult-use and medical cannabis, and the agency does not agree that NY Cannabis Insider’s findings indicate a significant health concern.

“A high yeast and mold count does not equate to a threat to public health,” said OCM spokesperson Aaron Ghitelman. “Growing cannabis outdoors is not much different than growing tomatoes or corn or lettuce; it’s a natural environment with microorganisms.”

But, Ahrens counters, people don’t inhale moldy tomatoes. They usually just throw them out.

Ghitelman added that the agency is aware of non-compliant test results but has not detected serious or systemic problems with testing accuracy or compliance.

This despite roughly 40 publicly available lab reports for some of New York’s best-known brands that clearly show noncompliant testing, misreported numbers and missing results.

In short, the integrity of the legal cannabis marketplace rests on a bedrock of safety, testing, and regulatory enforcement.

Ahrens said she sees none of that at play in New York.

“I see a lack of proper regulations to ensure consumer safety, blatant violations of the current testing requirements, and a lack of enforcement to adhere to the current regulations,” she said.

What’s going on here

Last year – the first for New York’s recreational cannabis licenses – the state mandated its conditional marijuana cultivators grow outdoors to encourage sustainability.

“I am proud to sign this bill, which positions New York’s farmers to be the first to grow cannabis and jumpstart the safe, equitable and inclusive new industry we are building,” Gov. Kathy Hochul said upon signing the Adult-Use Conditional Cultivator legislation in 2022. Here, the governor is pictured at the Annual SIEDC Business Conference on April 26, 2023. (Staten Island Advance/Jan Somma-Hammel)

The OCM quickly discovered the outdoor rule had consequences: Growers couldn’t pass lab tests for bacteria, yeast and mold.

This was not a surprise. Outdoor farming poses inherent contamination risks.

What did catch people by surprise was the OCM’s response to the problem.

After listening to farmers across the state, the OCM announced in November that it would remove test thresholds for those microbes.

Meaning: sky’s the limit.

Jeff Rawson, president and founder of the nonprofit Institute of Cannabis Science, said he remembers hearing the news.

“It was pretty famous, tossing out all the microbial testing,” Rawson said. “I’d never seen such a clear expression of profits and a market over public health. It was really stark.”

Despite having a team of scientists and licensed medical professionals on staff, the OCM also made licensed growers and processors responsible for deciding whether their products pose a public health risk.

“It is the responsibility of the licensee to consider … any risks to the health of consumers,” says the OCM’s testing guidance for growers and processors.

Sen. Liz Krueger, D-New York, left, fist bumps Sen. Andrew J. Lanza, R-Staten Island, after her legislation to legalize adult-use cannabis passed in the Senate during a Legislative Session at the New York state Capitol, Tuesday, March 30, 2021, in Albany, N.Y. (AP Photo/Hans Pennink)

On the same day as the OCM’s announcement, Colin Decker, a cannabis industry consultant and founder of 7 SEAZ, said that, yes, the move would allow farmers to get more product onto the marketplace.

“But, inevitably, it will open a can of worms in regards to the standards, quality, and expectations that customers would have for the flower and products they are looking to purchase in dispensaries,” Decker said.

And though, nearly a year later, the agency still has no limit for yeast, mold and bacteria, it does require those numbers to be reported in lab results so consumers know what they’re ingesting (assuming consumers know how to read the scientific reports and understand the results – or even realize that they’re entitled to see them).

Related: OCM’s “How to read a lab certificate of analysis for your cannabis product”

The OCM told NY Cannabis Insider on Monday that it flags any adult-use flower product with a total bacteria count above 1 million cfu/g – or 10-times the limit for medical cannabis – and reaches out to licensees to “help determine the appropriate remedial steps.”

It’s unclear whether the agency applies the same formula with yeast and mold results.

But:

• Eleven of 40 lab results for flower analyzed by NY Cannabis Insider had bacteria counts over 1 million cfu/g. One brand showed 24.7 million cfu/g.
• Nine had yeast and mold counts over 100,000 cfu/g, with one brand showing 2.5 million cfu/g (250-times the medical limit) in its results.

And most of these products are still available for sale today.

Protecting the public

The rationale behind New York’s cannabis legalization in 2021 was grounded in the idea of public health and safety, and the state continues to use that as a foundation to push consumers toward the legal market.

OCM Executive Director Chris Alexander has repeatedly hammered home the importance of tested, safe products.

In February, Alexander said that illicit storefronts are putting public health at risk, and enforcement against them will help stop the sale of contaminated products.

He said in June that launching legal cannabis businesses with “safe and tested licensed products is paramount.”

Charles King, left, CEO and founder of Housing Works, New York’s first legal cannabis dispensary, smiles as Chris Alexander, right, executive director of New York State Office of Cannabis Management, takes a whiff of one of the first cannabis product made during the dispensary’s kick-off press conference, Dec. 29, 2022, in New York. (AP Photo/Bebeto Matthews)

He told the public in July that when shopping at a legal dispensary, “you can purchase products you trust that were safely processed from seed to sale.”

Yet a product with lab results showing 250-times the medical limit for yeast and mold and noncompliant pesticide testing today sits on a New York City dispensary shelf.

Gov. Kathy Hochul made protecting public health one of three key pillars of the state’s Why Buy Legal campaign – a multimillion-dollar public relations effort announced in April to educate and explain to consumers why regulated cannabis products are safer.

Gov. Kathy Hochul and the OCM launched a public education campaign telling New Yorkers exactly why they should be purchasing weed from one of the state’s licensed dispensaries. The campaign explains the potential health risks associate with purchasing weed from unlicensed, unregulated businesses. (New York State Office of Cannabis Management)

But flower with noncompliant heavy metals testing and 37-times the medical limit for yeast and mold can be legally purchased and delivered to parts of Queens, Brooklyn and Manhattan.

And while New York’s multi-state medical cannabis companies published a study in November that described the illicit market as presenting “serious health and safety threats to consumers,” a top-selling legal cannabis brand in the Empire State has at least 13 non-compliant lab results tied to its products.

“At that point, you’re talking about health risks, consumer safety, and regulatory and market trust and confidence just going down the drain,” said Sarah Stenuf, a licensed cultivator at Ananda Farms.

Did farmers sell this product because they’re hurting on bills? Stenuf asked.

Did the labs not test correctly because there’s no quality assurance or standardization? Did the state not regulate because they went too fast into licensing? Or are retailers responsible for putting bad weed on shelves without sampling it?

“From start to finish, it’s a s***show,” she said.

But watching her competitors sell potentially dangerous product to recoup losses is “really disheartening,” Stenuf said.

“If that doesn’t give you incentive to go back to the black market, I don’t know what does,” she said.

The sun rises over a crop of cannabis at Main Street Farms in Cortland, N.Y., September 21, 2021. N. Scott Trimble | strimble@syracuse.com

The reality of outdoor grows

Not all bacteria and fungi are bad.

There are beneficial kinds that can be used safely in a variety of ways for cannabis cultivation, and those non-harmful microbes may lead to higher-than-normal bacteria, yeast and mold counts among lab results, said Kristen Goedde, founder and COO of Trichome Analytical in New Jersey.

Plus, New York’s microbial tests don’t always provide nuanced safety information.

Nevertheless, the majority of legalized states set their yeast and mold limits for recreational and/or medical products at 10,000 cfu/g, according to data from Medical Genomics. A small number, including Florida, Michigan, Maryland and Connecticut, set their limits at 100,000 cfu/g.

But even at that higher threshold, roughly a quarter of the products analyzed by NY Cannabis Insider still would not pass testing, according to their lab reports.

The lab at Trichome Analytical in New Jersey. (Courtesy Kristen Goedde, Trichome).

“It does not surprise me that there are high levels of mold and bacteria in cannabis grown outdoors in New York, due to the humidity, level of rain, and temperatures throughout the growing season,” Goedde said.

“Of high concern,” she said, is that the required testing for heavy metals like arsenic, lead, and mercury, along with more than 60 pesticides, is missing or mislabeled on the lab reports.

The labs

New York State has 16 permitted cannabis-testing laboratories, though only some can run all the tests required to get a product to market.

These tests include analyses of heavy metals, pesticides, microbes, filth, mycotoxins and residual solvents, which are permitted in cannabis products within certain limits.

But a lab’s equipment must be capable of detecting these trace amounts.

Inside Trichome Analytical’s lab in Mount Laurel, NJ. (Courtesy Kristen Goedde, Trichome).

If a certain contaminant is allowed up to 1 part-per-million (ppm), but the testing equipment is only able to detect 5 ppm or above, there’s no way for the lab to determine whether the sample fell below 1 ppm – and passed – or between 1-4 ppm – and failed.

That’s actually been the reality for mycotoxin and heavy metals reporting among some New York labs since January.

Additionally, some labs are performing only a fraction of the testing required to measure pesticides.

“Absolute negligence,” said Ahrens from True Labs.

The OCM acknowledged “discrepancies” among heavy metal and mycotoxin reporting but attributed them to coding or typographical mistakes. Labs have received deadlines to correct the errors, OCM’s Ghitelman said.

Regarding the dozens of lab reports that hadn’t tested for all required pesticides, Ghitelman added that statements were sent to deficient labs and those that failed to comply have been suspended from testing pesticides, and must now subcontract that work out until further approval.

But that’s not all.

Other labs are using the wrong reporting measurements; some have mislabeled samples as non-intoxicating “hemp” when they were actually cannabis; and one report, Ahrens said, appears to have intentionally altered its results for Aspergillus (a dangerous pathogen responsible for the only cannabis-related deaths in the country).

To put it plainly, the issue is bigger than just microbes.

“Consumers are being misled into thinking the products they are buying are safe and free of contaminants,” Ahrens said. “The testing data is showing that is not the case – that there are very high levels of contaminants in some cases.”

Goedde from Trichome Analytical said the issues don’t lie with one specific lab.

Nearly all 40 lab reports Goedde reviewed “indicate that the testing is not performed adequately to meet the regulations, or there are errors in the way the data is reported which make it appear that the regulations are not being met,” she said.

NY Cannabis Insider’s investigation also found that potency inflation appears to still be an issue despite changes earlier this year to testing requirements.

A NY Cannabis Insider investigation published on March 9, 2023, found the majority of the best-selling legal weed in New York contained drastically lower THC than advertised. The findings led to a regulatory policy change within 24 hours that affected every cannabis grower, processor and consumer in the state.

Related: How a NY Cannabis Insider experiment led to statewide policy change

In mid-August, we tested 10 top-selling products and found three had advertised 15%-or-higher THC content than independent lab results indicated, a violation of OCM regulations (one flower strain’s potency tested at 32% lower than the label).

Ghitelman said the OCM is currently working on potency standardization across labs.

In light of everything uncovered, NY Cannabis Insider asked the OCM how the public can feel confident that the agency is safeguarding and enforcing its public health and safety mandate.

Ghitelman answered:

“Concerns that are being raised have all been considered and addressed by the Office and the laboratories. The Office takes the public health and safety of the cannabis industry very seriously and has a dedicated team of scientists and licensed medical professionals …”

Relatedly, Ghitelman said the OCM and the Department of Health have executed a memorandum of understanding that allows the Wadsworth Center in Albany to act as the agency’s state reference lab and conduct testing derived from random product audits, internal findings or complaints.

The retailers

Damien Cornwell was awarded one of the first Conditional Adult-Use Retail licenses in New York in November.

His dispensary in Binghamton, Just Breathe, is operated in partnership with the Broome County Urban League, a nonprofit that provides after-school and summer programs, tutoring, mentoring and workforce development.

Cornwell has grown to become one of the most prominent people within the state’s legal weed industry, as both a board member of the Cannabis Association of NY and as one of the faces of Gov. Hochul’s “Why Buy Legal” campaign.

When provided with NY Cannabis Insider’s findings about product safety and lab compliance, Cornwell was stunned.

“It’s disconcerting,” he said, “because ultimately, there’s no bigger priority we can have, or loyalty we should have, than to the people we serve in our community.”

But, he added, “knowledge bears responsibility.” So, he said his staff has been pulling every lab report behind every product the store sells, inputting them into a database, and checking whether any have the issues cited in this story.

And if Just Breathe’s products show levels that Cornwell deems unsafe for customers, he’ll remove them from the store, he said.

Yet there is information he needs, but may not be able to interpret, to decide on next steps. And up to this point, the OCM hasn’t provided any education or training in that regard, he said.

“I’m not a cultivator, I’m not a processor, I’m a retailer,” he said. “But somebody has to do their part to make sure that we are equipped with the knowledge we need to make good decisions.”

Ultimately, Cornwell said he understands how hard it is for the state to set up a new market and get everything correct. But at some point, he said, you prioritize what’s most important and make sure you’re getting those things right

“And I would bet my life that the quality of the products that we put out there has to be No. 1, or damn near close to the top,” he said.

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