An association of marijuana testing labs is calling on the state to release unredacted data from Nevada’s seed-to-sale tracking system amid assertions that certain unidentified labs are inflating THC content readings and giving fewer samples a failing grade in an apparent attempt to attract more business.
Scientists for Consumer Safety, a group that represents four of the state’s 11 independent testing labs, is asking for the state to provide names to go along with data about lab results and punish any labs that are proferring inaccurate readings for their customers. The group says allowing false readings to stand puts consumers in danger, either by giving them a pot potency that differs from the label or allowing unacceptable levels of contaminants on dispensary shelves.
“The members of SCS call upon the State to enforce the existing regulations and revoke the licenses of any labs that have demonstrated through independent data analysis that they are endangering cannabis consumers and the public at large,” the group’s executive director, Will Adler, said in a statement, pointing to an analysis that “some labs are incapable of accurate testing or are willfully choosing to falsely report potency levels and ignore contaminants.”
The association was formed early this year to help labs share best practices and lobby for the Legislature. Adler said misstated scores are a matter of fairness to other labs in the market, and an issue of the integrity of the system, especially considering independent, state-mandated product testing is arguably the most important difference between marijuana sold in the legal market and that sold on the black market.
“These labs are violating the law, defrauding customers, and most importantly, putting the health of consumers at risk,” the statement continued.
The statement comes after Jim MacRae, a Washington State-based consultant, data analyst and consumer protection advocate who has previously published analyses of lab testing data from his home state, posted an analysis on his blog of public records he had obtained from the state. The records come from METRC, the software Nevada uses to track legal marijuana throughout its life cycle, and identify data including THC quantity and failed lab tests but with the names of individual businesses removed.
MacRae says his analysis shows “some labs are producing data that are qualitatively different than that being produced by others,” including that three labs over time are increasingly finding higher THC content in their samples, while four have relatively constant levels and two have shown declines over time.
The state confirmed to the Nevada Current that it took action on labs after hearing MacRae present his findings in September. That included unannounced visits from marijuana enforcement officials at all labs in the state and random retests of products by the Department of Agriculture, according to Scientists for Consumer Safety.
Products with higher levels of THC — the chemical in marijuana that produces a high — fetch higher prices in the market, and having too low a THC level can mean customers won’t even buy the product. Because labs must compete for business, labs that fudge their numbers and give their customers higher THC readings would attract more growers and cultivators as customers.
“If that lab's giving you a 22 percent when you're supposed to get a 17, it means you're going to be on the shelf in a dispensary,” Adler said in an interview, adding that misstating potency is akin to if you “buy Jack Daniels, get Corona in the bottle.”
While the state has acknowledged it is aware that some labs are misstating results, information about any consequences has been hard to come by. The Department of Taxation that oversees legal marijuana has so far declined to confirm that Certified Ag Labs, a Sparks testing lab, was suspended, even though a sign on the front door indicates it was.
The lab shot back, saying its reputation is at stake and all legal options are on the table.
“The state’s decision to suspend and potentially revoke our license came without warning,” the lab’s proprietors said in a statement to several media outlets. “This accusation is as baseless as it is appalling.”
Regulators have also declined to provide lists of what products might be inaccurately labeled, saying that it’s up to consumers to contact the dispensary and ask on a case by case basis whether their products were tested by the lab.
Gov. Steve Sisolak told The Nevada Independent this week that “selling a product that’s got a high mold or heavy metal content to somebody with a compromised immune system is really problematic for me.”
At the same time, he didn’t offer a timeline for when more detailed information will be released, including about disciplinary actions, which are also largely secret. He recently said he doesn’t know if the inaccuracies are intentional.
Marijuana companies “have due process and I fully understand that and I want them to have their due process,” Sisolak said. “At the same time, it’s my job to protect the public in an industry that’s in its infancy.”
MacRae said he submitted a public records request earlier this month for data with names revealed but hasn’t received a response yet.
“Nevada knows not only who these labs are, but where they are and who is responsible for their operations. Nevada knows which products they have tested and on which store shelves those products currently lie,” he wrote in his blog post. “Nevada knows how many consumers are purchasing these products each and every day. Nevada knows how much tax revenue they are making off of the sale of products tainted in this way.”
MacRae’s background is in pharmaceutical data analysis, and he has done consulting including helping to create “OK Cannabis,” a voluntary system in Washington through which products on dispensary shelves are randomly tested at labs, and those that fail that secondary check-up are pulled and publicly listed online. He said he also has clients in Nevada but declined to name them.
MacRae recommends a similar system that verifies the quality of the product after it leaves the lab.
“There is a true need for oversight of the labs that ensures that the results they are reporting to the public and they’re not systematically biased,” he said in an interview.
Sisolak has said that he thinks the state needs to run the testing labs to ensure they are independent and remove the profit motive to cheat.
“They have to be truly independent labs and unless they’re state-owned, I don’t know how you make them truly independent,” he said in an interview with reporter Steve Sebelius on KLAS-TV.
Adler said he thinks more random checks are in order, and says regulators already have some tools to address the problem. He added that he doesn’t think state-owned labs are a practical solution, citing the cost.
“I don't think the state wants to do that,” Adler said. “The other reality is these guys are here, they can do it right, they can do it ethically. They're doing it right now, and they're my members.”
Independent labs in Nevada test product samples from cultivation and production facilities for qualities such as potency, moisture content, whether there’s pesticide or herbicide residue, what terpenes are present and whether there is foreign matter in the sample. They have been touted as one of the key elements that differentiates legal marijuana products from those on the black market, keeps consumers safe and verifies product strength.