Missouri Officials Adopt New Marijuana Testing Rules To Combat ‘Lab Shopping’ For THC Potency

“The challenges in regulating and relying on for-profit cannabis testing labs,” said Missouri’s top cannabis regulator, “is one of the most discussed challenges in the national cannabis regulatory community.”

By Rebecca Rivas, Missouri Independent

In the marijuana industry, they say potency is king.

Producers all over the country are competing to put the most intoxicating product on the shelves. And that can leave the labs who test these products in a tough spot.

At least, that’s been the case in California and other states where marijuana is legal, said Josh Swider, co-founder and CEO of Infinite Chemical Analysis Labs in San Diego—and Missouri should take note.

Back in 2020, Swider started getting calls from marijuana producers asking him if he could guarantee a 20mg THC test result if they sent him a sample.

As an “honest lab,” he told them he couldn’t.

“The next year it went up to 25,” he said. “The year after that it went to 30. Now it’s up 30-plus guaranteed no matter what. You can never report less than that, or ‘I will pull my business.’ That is the exact conversations I have with the producers.”

For the past four years, Swider, who is also vice chair of the cannabis working group for American Council of Independent Laboratories, has been collaborating with cannabis scientists nationwide to publish a guide of testing best practices and to help address the issue of “lab shopping.”

One key suggestion, Swider said, is interlaboratory comparison.

“It’s something that is 100 percent needed,” he said. “Interlab comparison shows you if there’s flaws in the system.”

Missouri is joining the few states that have implemented an extra layer of “round robin” testing or auditing of marijuana products. It means that the state regulating agency—the Missouri Department of Health and Senior Services—can now instruct the state’s certified testing labs to double check each other’s work.

Up to 10 times a year, the state will instruct the licensed testing labs to pick up marijuana samples from another lab and perform a test. Then the state will review all the results to make sure they have similar results in THC potency—and that one lab isn’t passing a marijuana sample for pesticide residue while another one is failing it.

But this spring, Missouri’s testing labs owners united in opposition against this rule, saying it is duplicative of the current testing requirements, too vague and “unduly burdensome.”

“We do not claim that it is impossible to design an effective interlab comparison program, only that the approach outlined in this provision will surely fail,” stated Andrew Mullins, executive director of the Missouri Cannabis Trade Association in a May 6 letter to legislators.

When Missouri voters approved recreational marijuana in November, it meant the department had to issue a new set of rules to implement the constitution amendment. The interlaboratory comparison rule is a small piece of the 127 pages of new cannabis guidelines, that include everything from packaging to event organizing.

Those rules went into effect on July 30.

The department first introduced these rules in January, and they went through a public comment phase before making their way through their final hurdle—the legislative Joint Committee on Administrative Rules.

During a May 8 committee meeting, Amy Moore, director of the state’s division of cannabis regulation, explained why the new testing rule is “critical.”

“The challenges in regulating and relying on for-profit cannabis testing labs,” Moore said, “is one of the most discussed challenges in the national cannabis regulatory community.”

No standard testing method

Testing is among the many areas—like cannabis banking or labeling—where states’ regulation is hampered by the fact that marijuana is federally illegal.

In industries like food, the federal government sets the standard for testing. But for marijuana products, there’s no federal regulation over marijuana at all because it’s still considered an illegal substance.

Naturally, when labs are using different testing methods, they’re going to get varying testing results on pesticide levels and THC potency, cannabis lab experts say.

And that leaves state regulating agencies in a difficult position because they don’t have the necessary “boots on the ground” it takes to develop testing standards, said Kim Stuck, CEO of the cannabis and psychedelics compliance firm Allay Consulting.

“It is something that has been an issue in the industry from the beginning,” said Stuck, who previously served as an investigator for Colorado’s regulating agency. “I haven’t seen any state really make sure that those testing labs are getting the results they’re supposed to be getting, not yet at least. But there is a lot of talk about it.”

California is currently attempting to mandate a standard testing method—an effort that’s been in the works since 2021—and the roll out is being highly watched by the cannabis industry nationwide.

Lab shopping

Lab shopping poses serious safety concerns. For instance, when a product has less THC than the label actually says, customers not only get ripped off but they also face overdosing the next time they buy a product with the accurate potency.

Some states, like Missouri, are attempting to tackle the issue by having the labs double check each other’s results.

Pennsylvania attempted to require two different labs to test medical marijuana products, but a court struck down the rule this summer.

In January, Oregon passed a rule that’s similar to Missouri’s, where it requires random “round robin” testing among the labs.

“[The] goal is to flip the incentive structure from ‘get the highest result possible’ to ‘get the most accurate result possible,’” according to a November presentation by TJ Sheehy, director of analytics and research at the Oregon Liquor and Cannabis Commission.

Until it’s federally legalized, interlab comparison is the best option for state regulating agencies, Stuck said.

“This isn’t an end all be all,” Swider agreed. “It should be something that’s getting done to make sure that everyone’s on the same playing field.”

Most states, including Missouri, have relied on “proficiency testing,” which means accessing performance against a set of pre-established criteria.

In most states, the licensees find an accredited test provider that performs interlab comparisons as part of this process, asking labs to test samples from the same batch of marijuana or marijuana products to ensure results are similar.

In Missouri, labs are required to do this annually. In Colorado and California, it’s twice a year.

A big challenge with proficiency testing is that the test providers cannot possess or ship marijuana samples because it’s a federally illegal substance. That’s why in Colorado, the Department of Public Health and Environment conducts the proficiency testing for the state’s certified labs, a department spokesperson told the Independent.

Missouri and Oregon will continue to require proficiency testing. But now they’re also mandating these more frequent and random round robin tests—where labs test each other because the states don’t have their own labs currently.

“One constant in cannabis regulation is that state regulators continue to learn from each other,” said Mark Pettinger, spokesman for Oregon’s cannabis program. “And so rules like Missouri’s can serve as inspiration and a model for Oregon’s efforts as we look to build on the ‘first draft’ of round robin testing.”

Industry pushback

The new rule also allows the department to “initiate an investigation or other corrective action” for testing labs producing inconsistent results.

However, lab owners worry that the state will use the rule to be overly punitive, without enough data to back it up.

Anthony David, owner and COO of Green Precision Analytics Inc., said testing methods and standards are typically developed using a mass amount of test results, which Missouri won’t gain from this rule.

“Yes, we all want better ways to test,” David said. “We all want methods that are validated and that everyone can use across the entire United States and testing laboratories. But it’s an obtuse way of thinking for the state to think that they can do it.”

David said with the state gathering 10 tests a year for 10 laboratories, that’s 100 samples.

“That’s nowhere even close to enough data to know whether someone is an outlier, or whether they’re testing in regulation,” he said.

David pointed out that both Colorado and California require interlab comparisons as part of their proficiency testing, and it hasn’t helped either state address the issues of “lab shopping.” Missouri’s rule would be one more unnecessary hurdle and cost, he said.

Swider agrees the state shouldn’t limit itself to the number of tests it can conduct. And he said a big part of why California’s policy hasn’t worked is because the state lacks enforcement. But Swider believes Missouri’s rules could be successful if the state is willing to hold labs accountable.

Cannabis regulators showed they were willing to bring down the hammer with the recent recall of more than 60,000 cannabis products, as part of an investigation into one manufacturer allegedly not going through the proper testing process.

“It’s a necessary evil, I call it, the enforcement,” he said. “Because if not, what happens is the whole testing industry implodes on itself. You can write the best regulation in the world, and then if no one does anything, guess what. Welcome to California.”

This story was first published by Missouri Independent.

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Photo courtesy of National Institute of Standards and Technology.

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