The Colorado Department of Revenue’s Marijuana Enforcement Division (MED) is hosting five working groups to establish additional regulations for retail sales of medicinal and recreational marijuana. The Mandatory Testing and Random Sampling Working Group recently met to discuss potential testing requirements for pesticides, microbials, molds, filth, residual solvents, harmful chemicals, and potency.
The term “potency” concerns the strength or effectiveness of marijuana and marijuana-infused products. For some, a potent product will be high in a cannabinoid called delta-9-tetrahydrocannabinol, or THC, the main ingredient responsible for marijuana’s psychoactive, or mood-altering, effects.
Other consumers are looking for products high in cannabidiol, or CBD, which has medicinal properties without the psychoactive effects.
“Testing and labeling potency, whether for THC or CBDs, especially in edibles, is important because patients could either overmedicate or pay for a product that will not be effective,” explains Genifer Murray of CannLabs, Inc., a third-party cannabis-testing lab in Denver.
The rulemaking process
Colorado currently faces the unprecedented challenge of setting state government standards for not only testing for marijuana potency but also standards to appropriately communicate those test results to consumers.
“Our primary focus is always public safety and to make sure that communication is clear to the end user,” says Julie Postlethwait, the spokeswoman for MED.
Setting potency standards raises several questions, including what types of potency tests to require, what sort of labeling to require, how to set testing calibrations, how to certify testing facilities, and how to properly gather testing samples.
“Ultimately, how Colorado regulates the testing and labeling of marijuana potency largely depends upon the working group discussions,” Postlethwait says.
She adds that MED must follow Colorado’s rulemaking procedures, which includes public comment. MED is currently accepting written comments and will host a formal public hearing for oral testimony on Nov. 18.
Postlethwait also explains that MED is creating regulations based upon existing state law, but the Colorado legislature meets again in January. At that time, lawmakers could require MED to create more regulations or even mandate greater specificity in the regulations already promulgated by MED.
And, overall, Postlethwait suggests that Colorado still needs more time and information before it can fully develop comprehensive regulations.
“We need an opportunity to let things shake out,” she says, considering that Colorado is the first state to set these types of standards.
She also emphasizes that the future of potency testing and labeling heavily depends upon MED’s enforcement capabilities.
“No matter what regulations are put in place,” Postlethwait concludes, “we have to be able to enforce them.”
Who will do the testing?
One key obstacle to setting potency standards has been the certification process for laboratories.
“Samples of all marijuana products for retail sale will have to be tested by a certified lab. But right now, MED is worried that Colorado doesn’t have enough laboratories to do the testing. So it looks like they are waiting to get a certain amount of labs before they put down all the rules,” Murray says.
Currently, only three existing labs would likely meet certification standards, Murray explains. But she also notes that when MED does mandate testing, other labs will very likely open to meet the increased market demand.
Another obstacle to setting potency standards has been determining which state agency will certify the labs. Murray points out that the Colorado Department of Public Health and Environment (CDPHE) does not want to be the agency responsible for lab certification.
CDPHE’s reluctance may be because it receives federal funding. On the federal level, marijuana remains an illegal, Schedule 1 narcotic, so CDPHE could risk its federal funding if it participates in Colorado’s legal marijuana industry. MED, in contrast, is a section of the Colorado Department of Revenue, which is entirely state-funded.
Regardless of which state agency is responsible for certification and enforcement, Murray suggests that funding should not be an obstacle.
“We just passed a ridiculously high marijuana tax, so money should not be the problem,” she says, referring to the recently approved 15-percent excise tax and 10-percent sales tax on all recreational marijuana sales in the state. These new taxes are estimated to generate $70 million in revenue in 2014.
What will potency standards mean for the market?
“I’m all for it,” says Adam Raleigh, owner of Telluride Bud Company, when discussing mandatory potency testing and labeling standards.
Raleigh, who currently sells medicinal marijuana at his store in Telluride, explains that product labeling and testing is a natural progression of the industry as business expands and consumers become more educated.
“Over the last three years of me owning my own business, my clients have gotten more educated. They come in wanting a Sativa Indica or a hybrid or a certain strand,” Raleigh says.
Raleigh is not concerned about extra costs associated with mandatory testing and labeling.
“When testing is mandatory,” he explains, “it will be a cost borne by everyone, across the board.”
Additionally, Raleigh says that most of his edible products already have labels stating levels of THC and CBDs.
Julie Dooley, owner of Julie & Kate Baked Goods, says that her company will be happy to comply with state-imposed regulations.
“Potency is critical information,” Dooley says. “We have been lab-tested since we opened in 2010, and we have always believed that testing is the essential piece to understanding what kind of medicine we are able to dose.”
Jessica LeRoux, owner of Twirling Hippy Confections, also believes potency is important information. However, she says that if Colorado is going to mandate testing, then it needs to mandate calibration testing first. Otherwise, test results are not comparable.
“Currently, testing is really more about marketing than it is about actual science,” LeRoux says.
Charlie Steinberg of Herbal Synergy, LLC, a cannabis-testing company, expressed similar sentiments.
“Some companies use testing methods that will give their clients higher THC level, even if those methods are not the most accurate depiction of potency. The clients want these results because it makes their products more marketable,” he says.
“Without certification standards, people are out there testing wrong to give a higher THC number,” Murray says.
What will potency tests look like?
A number of factors affect the potency of marijuana and infused products.
“[Potency] can vary depending on the strain or variety of the plant, the way in which the plant is grown, the part of the plant that is used, and the way the plant is prepared for use and stored,” states a fact sheet prepared by the University of Washington (UW) Alcohol and Drug Abuse Institute.
And a variety of methods currently exist to test potency. Herbal Synergy, for instance, uses gas chromatography. Cannlabs has used High Performance Liquid Chromatography.
“Of course, everyone is going to say their method is the best,” says Steinberg.
Steinberg believes that standardized testing is not realistic because of the chaotic nature of the marijuana industry right now.
“Even with more laws and regulations, labs really have no great starting point because, up to the day when all the labs, growers, concentrate artists are not making up names of strands, mixing genetic pools, and logging incorrect information, testing is not going to be standard,” he says.
According to Murray, testing labs are inevitably going to compete with one another.
“Right now, producing faster test results gives you a competitive advantage,” she says, adding that the competitive advantage will likely change as more labs open and come up to speed.
But as for whether labs can produce reliable results, Murray says, “As long as we are all certified – whatever that means – then yes, we should all be getting in an appropriate error range and get the same result. It doesn’t really matter how you get there as long as there is a standard to get there.”© Food Safety News