Every cannabis product sold legally in Connecticut is tested for mold, yeast, aspergillus fungus and other contaminants. Only those tests that pass inspection are made public.
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Some advocates believe that lack of transparency serves the interests of the marketplace over those of consumers, as access to failed testing data is necessary to make an informed choice on where best to shop for the product.
Industry leaders and legislators, however, argue that failed tests have little value to consumers since the products that fail testing are not available for sale. Failed test data would only provide a skewed, inaccurate idea of how the process works, they say.
Erin Gorman Kirk, the newly appointed state cannabis ombudsman, said the issue is “a great concern” to her.
“I want to know what products are passing, and what aren't,” she said. “Not only is this a consumer and patient matter, but it's also something I think that my office should be made aware of so that we can assist in making sure that these problems are” addressed.
Kirk has heard from numerous registered medical cannabis patients who are concerned about the presence of yeast and mold in the cannabis they consume. One of those patients, Josiah Schlee of Simsbury, said he thinks the state is intentionally making information that could be perceived as negative more difficult to obtain.
“While the state is claiming transparency, they're intentionally making all the good things incredibly easy to find,” he said. “It's called having a complete data set. A partial data set is not a complete scientific analysis, and these are multi-million dollar, multi-state operating companies.”
“It's complete corporate control and interest,” Schlee added. “There's no care for the customer whatsoever. There's no product quality. Nobody has any faith or trust in anything.”
Seed-to-sale
According to Connecticut law, a representative sample of every cannabis product sold in the state — every pre-rolled joint, every pack of gummies, every vape cartridge — must be tested by an approved third-party laboratory.
The certificates of analysis are available online in the state’s Medical Marijuana and Adult-Use Cannabis Brand Registration database. For example, Northeast Laboratories tested a Curaleaf product listed as “Sour Fire OG BHO Live Resin Vape” on July 30.
Tests were conducted for mold, yeast, aspergillus, listeria, heavy metals, mycotoxins and pesticides, among other chemical compounds, including THC potency. Levels for all tested contaminants were found to be within appropriate levels previously set by the state.
Those test results, and similar results for thousands of other cannabis products are available to consumers, every one of them receiving a passing grade. They do not say if that product previously failed and been remediated, how many similar products in the cohort had failed testing or how many tests one specific business's products had failed, overall.
“Passing tests are attached to their corresponding products in the brand registry, and because the brand registry is public facing, the attached passing tests would be as well,” Department of Consumer Protection spokesperson Kaitlyn Krasselt said. “Failing tests would not be attached to the brand registry because a product with a failing test would not be permitted to be branded and sold.”
She said that “the legislature prescribed the information to be monitored in the seed-to-sale system, including “how cannabis is produced and transferred.”
“Whether a product fails testing is critical for regulators to determine whether there are any public health and safety concerns,” Krasselt said.
Attorney Mark Sommaruga, author of “Understanding Connecticut's Freedom of Information Act,” said that the availability of failed tests to regulators and law enforcement provides a way to ensure that “the public’s interest is protected.”
“It doesn't do much for an individual but if there ever is a significant problem, assuming there are improper activities that’s how it would be addressed,” he said.
"Why it may be that way, who knows?" Sommaruga continued. "Maybe they’re trying to avoid mass hysteria.”
When flower fails, vapes pass
Rino Ferrarese is now managing partner at Affinity Grow, one of only six operating cannabis cultivation facilities in the state. Before that, he ran Verano’s cultivation facility in Rocky Hill, the largest in Connecticut.
He said the state “has taken the position that they're really not interested in testing things into compliance.”
“That's where you get one negative result, a fail. Let's say then you keep testing, and eventually test it 97 times and it passes,” Ferrarese said. “Can this, the 98th time we test the sample, can I accept this result?”
Ferrarese said there’s no way to know where a contaminant entered a product sample.
“How did we know that the out-of-spec result wasn't due to the lab handling of the sample or a contaminated reagent, or the samples were held for too long before they were plated at the lab?” he said. “There are a lot of different things that can go wrong. And no producer that I know ever wanted to put out bad flower to hurt anybody. God forbid.”
Sometimes, Ferrarese said, if a product fails a test, the producer might process it into a different form, turning raw cannabis into a vape cartridge or gummies, which he said would kill most if not all contaminants. The product would then be retested, and pass, before it is sold on shelves.
“As you run that material through supercritical fluid extraction, basically, it processes the cannabis in such a way that the concentrate that comes out is practically sterile,” he said “You just submit the new concentrate, and the concentrate passes for micro and everything else.”
But Schlee said that’s exactly the sort of information he as a consumer would like to know. The state this year passed a law specifying that consumers must be informed when a product has been remediated, but Schlee noted that such information is not easily accessible.
“Instead of destroying these batches, they then turn them into distillate, and then retest that distillate where it's watered down enough that this stuff can pass,” he said.'
Value of a failed test'
Sommaruga said that if advocates want failed testing data to be public, there’s only one way to make that happen: “When the law is written, the law is written. All you do is ask for the law to be changed.”
State Rep. Josh Elliott, D-Hamden, said it’s something he “will certainly look into legislating going forward into next year.” The next session of the General Assembly starts in January.
“My belief, as with many things that pertain to government, is the more open, the better,” he said. “I think it's in the public interest to know what the results of this testing is.”
Not all legislators agree, though. State Rep. Melissa Osborne, D-Simsbury, said that while she’s “always leaned in favor of open and transparent government records,” failed cannabis test data could be “misleading.”
“Given the potentially misleading implications of failed tests and that the end product still getting to the consumer has to meet all of our safety guidelines, I'm not concerned that failed testing data isn't available, because it could be used in an anti-competitive way,” she said. “It doesn't inform the user of the ultimate product, what the safety of the product they're consuming is.”
State House Majority Leader Jason Rojas, D-East Hartford, called it a question of “policy value of people knowing about the failed test when the end product was an actual one that passed.”
There is no issue of public health if the products being sold have passed testing, he said. What remains is a question of transparency.
“You have to weigh that against the reputational harm against the business and the business owner, or whoever might be invested in it,” he said.
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