The Oregonian cannabis community is rattled. One issue has come to divide the state’s legal cannabis industry in recent months: Aspergillus testing. And there’s no obvious resolution in sight. Here’s the quick summary of the story so far:
On March 1, the Oregon Liquor and Cannabis Commission (OLCC) began requiring all cannabis flower harvested in the state to be tested for Aspergillus fungi. It’s a standard testing requirement in many states with legal access to cannabis, but Oregon’s cannabis community proved to be more resistant to the stipulation.
In late July, the largest cannabis trade association in the state, the Cannabis Industry Alliance of Oregon (CIAO), sued the Oregon Health Authority (OHA) over the fungi testing rule, claiming that the requirement was unnecessarily leaving cultivators out of pocket.
And the Oregon Court of Appeals was sympathetic to the argument. On August 25, it issued a motion that paused the requirement until at least next March.
So, now cannabis samples in Oregon, once again, don’t have to be tested for Aspergillus. But will the testing resume come March? Or will some other, modified requirement be enforced? And why are Oregonian cultivators seemingly so determined not to test for potentially harmful fungi anyway?
There are lots of questions flying around Oregon’s cannabis fields these days. So Analytical Cannabis spoke to a few of the people on both sides of the Aspergillus debate to get some answers.
Testing at a cost
“A lot of my clients were eager to figure out how this might impact them,” says Kevin Jacoby.
Jacoby is a lawyer representing the CIAO in the legal challenge against the OHA. He says, prior to the original March 1 deadline, many of his clients were experimenting with remediation technologies to see if they could get their crops to pass the incoming zero-Aspergillus limit. There were mixed results.
“Certain remediation techniques just didn’t work. They [the growers] would spend all this money to run it, for example, through an ozonator, and then get retested and it would still fail. The only [technique] that one of my clients was able to get a pass afterwards was irradiation. But that process negatively affected the color and the smell of the product – and it reduced the THC content by 25%.”
“That particular client was adamant that he was going to disclose that this product was irradiated,” Jacoby adds, “which means he couldn’t sell it – or, if he could sell it, it [would be at] 60% discount.”
This discounted, diminished cannabis may have been sellable under the incoming Aspergillus testing rules, but, according to Jacoby, at least 20% of his clients’ crops still weren’t.
“We were seeing a failure rate of about 20%, and that was just on product that was harvested primarily indoors – greenhouse crops – in Oregon.”
“That does not bode well for outdoor producers.”
Given that most of the state’s cannabis growers cultivate outside in Oregon’s precipitous climate, Jacoby’s clients were concerned that their true Aspergillus failure rate, come the harvest in September/October, would be much greater.
“At that point, they [the growers] could be looking at potentially their entire harvest being failed for Aspergillus,” says Jacoby.
Fearing impending losses, the CIAO filed its lawsuit against the state regulator in July, successfully stalling the requirement by August.
Avoiding Aspergillus
But what about the threat Aspergillus poses? some might ask. Now that it no longer has to be tested for, are consumers not at risk from fungi-tainted cannabis? Well, not really, argue some of Oregon’s growers.
“By their own admission, OHA has no record of an actual health crisis being caused by consumption of cannabis in Oregon since at least 2016,” Les Helgeson, manager of Green Hills LLC, a cannabis producer in Oregon, tells Analytical Cannabis.
“Unfortunately, unscrupulous corporate interests have manufactured an imaginary crisis, especially for Aspergillosis that is so rare it is not a reportable disease in the United States,” he adds.
Aspergillosis is a disease caused by inhaling Aspergillus spores. Most people can inhale such spores without issue but people with weakened immune systems and lung diseases are less resistant to the spores’ detrimental effects and can develop complications following an aspergillosis infection, such as lung damage.
The disease has been linked to cannabis consumption in several medical case studies, most involving immunocompromised patients who smoked medical cannabis.
Primarily for this reason, many US states with legal cannabis require labs to test cannabis samples for Aspergillus before the products go to market. Helgeson, however, says other policies could be pursued, policies that ultimately put responsibility in the hands of the consumer rather than the producer.
“A suitable alternative to expensive, unreliable and misleading testing requirements would be to post signs in retail establishments advising immunocompromised people to avoid inhaling cannabis or any other inhalable products (such as tobacco, etc.),” he told Analytical Cannabis in an email.
So, with the court suspension in place and the future direction of Oregon’s cannabis testing policies unclear, is such a labelling-only program the way to go? Not according to Medicinal Genomics.
“From our experience, looking at California and other states that have made this transition from totally yeast and mold [testing] to Aspergillus testing, the actual fail rates go down, because you’re only targeting for the Aspergillus species; you’re not targeting every single yeast and mold that’s in the plant,” Brendan McKernan, the chief executive officer of Medicinal Genomics, tells Analytical Cannabis.
Medicinal Genomics produces assays to test for Aspergillus mold on cannabis samples. McKernan and his team submitted some suggestions last year to the OLCC during its open comment period on the proposed Aspergillus testing rule. Perhaps unsurprisingly, they recommended the regulator require Aspergillus testing. Aspergilloses, they say, should not be underestimated.
“Even with an underreporting issue, the number one thing that kills cannabis users is aspergillosis,” McKernan says. “There’s nothing else that touches it.”
“If you do get aspergillosis – granted, it might be very rare – it has a 50% mortality rate,” he adds. “So it’s very serious thing that happens at a very rare rate.”
Moving forward
But what do McKernan and his colleagues make of the CIAO’s concerns? Specifically, what about Oregon’s precipitous outdoor growing climate? Aren’t such conditions always going to lead to a certain amount of Aspergillus growth? Well, it’s an issue that’s been overcome before, they say.
“California has been doing it [Aspergillus testing] for two years and their climate – at least Northern California – is not too different from Oregon,” says McKernan. “So I don’t think there’s a radically different amount of Aspergillus in the air between the two geographic regions.”
Jacoby, however, is a little more skeptical about the similarities between California and Oregon’s climates. While accepting that the geographic climates are much the same (along the border, at least), Jacoby says the testing climate is a little looser down in the Golden State, to the advantage of the labs.
“Essentially, the industry had figured out how to game the system in California,” he claims. “So that there would be no fails or very little fails for Aspergillus.”
“Whereas in Oregon, our system is much more rigorous,” he adds.
But, within this general complaint of stringency, Jacoby and McKernan can find common ground. The Medicinal Genomics team think Oregon’s cannabis sampling rules, for instance, could be more lenient, especially the requirement to test just a gram of cannabis for Aspergillus.
“The sampling of a gram is too small to really get a good survey of the plant,” McKernan says. “We did all of our testing on 10 grams.”
The regulator’s decision to require zero Aspergillus spores in a sample rather than less than one colony forming unit (CFU) per gram is also potentially troublesome, he says.
“I understand they’re [the growers are] concerned,” says McKernan. “I think they’re zeroing in on this zero-detect language in the test. And so that’s something that perhaps some Oregon regulations can better clear up.”
“If they [the regulators] go to 10 grams, they can have nine [CFUs] there; they go to 25, they can have 24 [CFUs]. But when you say absent, they’re assuming when you scale the subtenants to 25 it [the number of CFUs] stays at zero, which is a bad metric,” he adds. “Because if you increase the sampling size, you’re still stuck with absent, which means it gets harder and harder for you to pass if you go to the larger sampling. That’s not fair.”
So, is there any chance that the OLCC and OHA will adopt this higher-sampling suggestion as a way of appeasing Oregon’s growers? Only time will tell. For now, both the regulators and the CIAO are preoccupied with jumping through the legal hoops of the court’s order that suspended the testing requirement.
“The court has already signaled that we’re likely to prevail on the question of validity of the rule,” says Jacoby, “but that we have to file an opening brief and then the state gets to file a response, we get to file a reply, and then we have oral arguments, and then we wait for a decision. So that process takes about 12 to 18 months.”
“In the meantime, the agency can have the option to promulgate and move the appeal,” he adds. “But, in order to replace the rule with a new one, they would have to go through full permanent rulemaking procedures first. And that process takes six to eight months.”
Analytical Cannabis reached out to the OLLC, asking how the agency plans to respond to the court’s order. The regulator replied with the following:
“OLCC will refrain from additional public comment at this time.”
The CIAO, on the other hand, isn’t so shy about declaring its plans. According to Jacoby, the group of growers are just getting started with their fight with the regulators.
“The CIAO members are on alert,” he says. “They’ve been on alert since this rulemaking effort was initiated just a couple of months ago. And they've been trying to get people on the rules advisory committee that OHA is setting up, because usually industry groups get at least one seat.”
“I will say that, having represented this industry since 2016, this is the first time that they’ve been this organized,” Jacoby adds. “They’re prepared for this fight now.”
*Update: The article was updated on September 21, 2023. A previous version of the article incorrectly stated that the Oregon court's order had suspended the Aspergillus testing rule "indefinitely". The court's suspension order lasts 180 days. A portion of a quote from Kevin Jacoby was also removed for the sake of accuracy.