There are no “organic” cannabis products in California, even though growers want to grow organically and consumers are willing to pay for the safety of organic products . California law could be changed to fix that.
It is illegal to label any cannabis product as “organic.” In the United States, a product may not be labeled “organic” unless it complies with the applicable rules and regulations issued by the United States Department of Agriculture pursuant to the Organic Food Production Act. The USDA has not issued any rules or regulations regarding organic cannabis because all cannabis products are illegal under federal law. Since no one could possibly comply with rules and regulations that do not exist, no one can sell “organic” cannabis.
This is not a minor problem. Consumers want to know that they are not ingesting toxins with their cannabis. Medical cannabis patients are already suffering from health problems. Some are using cannabis to counteract some of the worst side effects of chemotherapy. They certainly do not want to use a product that might harm them.
The most recent Emerald Cup illustrates the scope of this problem. The Emerald Cup is an annual cannabis competition held in Northern California. Most of the entrants are small local producers, and the contest holds itself out as “deeply rooted in organic awareness, education, and community.” The folks who enter the competition know that their products will be tested for pesticides. In other words, it is not a place where you would expect to find pesticide-laced marijuana. But find it they did.
Earlier this week, the Santa Rosa Press Democrat reported that 25% of the entrants in the “concentrates” category at the Emerald Cup were disqualified because tests revealed the presence of pesticides. Even some of the prize winners were ultimately disqualified because their products tested positive for pesticides.
The Press Democrat interviewed one of the disqualified entrants, and his story is revealing. This fellow, Joey Burger, is a grower up in the hills of Mendocino County. Last year, he discovered that his crop was being eaten by russet mites. Hemp russet mites are particularly unpleasant little bugs that you can only see through a microscope. They eat only cannabis, and can destroy an entire marijuana crop in a couple of weeks. Burger tried to get rid of the mites by using a pesticide that he thought was organic. The active ingredient of that pesticide was pyrethrin.
Of course, the US Department of Agriculture does not provide a list of products that are safe for fighting hemp russet mites. The State of Oregon, however, has been developing a list of pesticides that can be used on marijuana, and allows pyrethrin, provided that the cannabis product ultimately contains less than 1 part per million of pyrethrin. This level is often far exceeded in tests of marijuana, however, and the Oregon Department of Agriculture has recently issued an alert to the effect that high levels of this pesticide are unacceptable. The ODA is considering removing the pesticide completely from its list of safe products.
You can see what a tough spot Joey Burger was in. He was about to lose his crop to russet mites. He did some research and found out that russet mites can be defeated with a pesticide listed as safe by the State of Oregon. He bought the pesticide, but perhaps innocently used too much of it, and now his product has been disqualified from the Emerald Cup due to a pesticide issue.
The consumer is in a much tougher spot than Mr. Burger. The consumer has no idea whether the product he is purchasing is laced with pesticides. We now know that a significant percentage of Emerald Cup entries contained pesticide residues, and we can be pretty sure that the percentage is higher in the marketplace. If you’re buying cannabis that has not been tested for pesticides, there is a substantial possibility that you are getting pesticides with your product.
Joey Burger sounds like a responsible grower who was trying to put out a high quality, uncontaminated product. But there are growers who are not as responsible as Joey. There are plenty of growers out there whose entire livelihood is tied up in their crop. If that crop fails, they’ll lose their house, their car and everything else. If russet mites or some other pest comes along, those growers are going to do everything they can to save their crop, including using dangerous pesticides. Without proper regulation, those pesticide-laced products will find their way to consumers.
The best solution to this problem would be for the USDA to allow organic certification of cannabis. The USDA sets a high standard, and monitors organic producers carefully. The USDA examines the entire growing process, including organic soil amendments, soil conservation, delivery of organic nutrients, organic pest and disease management, greenhouse conditions, harvesting and labeling. Consumers can justifiably rely on the USDA to ensure that products labeled “organic” are as safe as possible.
But the USDA is not going to certify organic cannabis as long as cannabis remains illegal under federal law. And Congress is not going to change the law anytime soon. So that solution is not available.
There have been some private sector attempts to provide an alternative certification that would serve as an “organic” surrogate. Basically, these work sort of like the Good Housekeeping Seal of Approval. A private company examines the practices of a grower, and, if the grower meets its standards, the grower can label his product with a “certification” or “seal of approval” which supposedly will give the consumer a level of confidence in the safety of the product. There are at least four or five of these certifying outfits currently operating in the Unites States.
There is a systemic reason why organic certifications should not be issued by private companies. The way these private certifiers generally operate is to require the grower to pay an application fee up front. These fees are the sole source of revenue for the private certifier. If the grower does not get certified, it is safe to say that the grower will not be paying a fee to the certifier in future years. So the certifier has a financial interest in providing the certification. It certainly has no financial interest in going back to the grower after the certification has been issued to determine whether the grower is still maintaining the required standards. So there is an inherent conflict of interest that diminishes the credibility of private sector certifications.
California’s new Adult Use of Marijuana Act (Proposition 64), passed by the voters last November, will provide some limited help. Prop 64 will inaugurate new testing requirements for cannabis products. As part of the licensing process for cannabis products, a representative sample of each product will be tested by a state licensed testing laboratory. The testing laboratory is required to be neutral, and not affiliated with anyone doing business in the cannabis industry. It is not yet clear what, exactly, the labs will be looking for. The new law (Business and Professions Code section 26101) provides that the products will be tested for “poisons, toxins or carcinogens,” but the specific substances are not identified. The California Department of Public Health is currently trying to draft regulations to implement this law, and those regulations will likely identify the substances that the labs will look for. Hopefully, the testing process will rid the marketplace of the most hazardous contaminants.
The Department of Public Health is not required to issue its new regulations until January 2018. After that, it will start issuing licenses to testing laboratories, and there will probably be a further time lag before the testing system is fully operational. So we have a while to wait before we can enjoy the safeguards provided by Prop 64.
Prop 64 recognized that many consumers will still want organic cannabis, even after the new testing process goes into effect. “Organic” is the gold standard for safety in agricultural products. A lot of people want that, and are willing to pay extra to get it. Unfortunately, Prop 64 handled the issue of organic cannabis in a way that is doomed to fail. Prop 64 provides:
“The Department of Food and Agriculture, in conjunction with the bureau, shall establish a certified organic designation and organic certification program for marijuana and marijuana products in the same manner as provided in Section 19332.5 of Chapter 3.5 of Division 8.” Bus. & Prof. Code § 26062.
That sounds fine until you read Section 19332.5. That section provides that, by January 1, 2020, the Department of Food and Agriculture will make available a program for organic certification of cannabis “if permitted under federal law.” In other words, there will be no organic cannabis program in California until the USDA changes its mind about cannabis. And that is not going to happen until Congress acts to make cannabis legal under federal law. And Congress is not going to do that anytime soon, if ever.
So, as things stand, there will be no organic cannabis program in California in the foreseeable future, even though many consumers and many producers want one.
Things don’t have to stay this way. There is no reason why California cannot bypass the USDA and implement its own organic cannabis program. California will not be able to use the word “organic” in connection with its certification program, but that should not be an impediment. Make up a new term: “naturally grown,” “totally green,” “ultimate agricultural safety.” Let the consumers know what the new label means, and they’ll be fine with it.
California should not let itself be held hostage to the federal government on the issue of organic cannabis. California growers want to produce it, Californian consumers want to buy it, and the State of California should provide a program to make it available.