For anyone in the California cannabis business, July 1, 2018 marked the beginning of a new era of cannabis regulations. In addition to more stringent packaging and labeling requirements, cannabis flower and cannabis products must also now be tested for a second more expansive list of pesticides, as well as residual solvents and foreign materials.

While all testing labs adhere to the same set of regulations, there are no standardized methodologies for how labs test for cannabinoid concentration, composition, and contaminants. The lack of standardization is leading to inconsistent testing results and clearly presenting major problems for cannabis producers, evidenced by 3 voluntary product recalls announced within less than 1 month.

On July 25th, The Bloom Brand voluntarily recalled a batch of cannabis products that contained Myclobutanil, a fungicide commonly found in food production. The Bloom Brand has not yet explained how the contaminated products made it past laboratory testing and into over 100 retail stores across California.

Two days later on July 27, Lowell Herb Co., a producer of cannabis pre-rolls, voluntarily recalled a batch of products from 74 California dispensaries. Interestingly, the recalled product batch was initially cleared for sale after being approved by two different testing labs. However, two weeks after the batch was initially approved, results from a third test reversed the decision for failing to pass the state’s testing standards. The contaminant in question was not identified.

On August 19, Venice Cookie Company initiated a voluntary recall of its cannabis-infused beverages due to a change in the passing grade of its compliance testing. The product batch initially passed testing in June, but a month later the Bureau of Cannabis Control reviewed the testing, and the testing lab failed the batch due to impermissible levels of ethyl alcohol in some of the products. While, VCC stated that the products were “completely non-hazardous and safe to consume,” it nevertheless recalled the products from over 100 dispensaries.

Representatives from multiple California testing labs responded to these events stating that these situations are outliers, and recalls will be less of a risk once the track-and-trace system is implemented. But, the track-and-trace system is not a solution to inconsistent lab testing. Moreover, it is important to recognize that there has been, and will continue to be, changes in the mandatory testing requirements relative to a phased-in approach as of January 1, 2018, July 1, 2018, and December 31, 2018. The 3 voluntary recalls to date all occurred after July 1, 2018, when the phase 2 additional testing became required. These recalls present questions as to how the industry will be affected when even more mandatory testing for terpenes, heavy metals, and mycotoxins are required beginning December 31, 2018.

Though the California Department of Public Health (CDPH) only requires cannabis manufacturers to have written recall procedures as a condition of licensure, distributors and retailers are also affected by recalls and should establish formal procedures for recording consumer complaints and relaying such concerns to the manufacturer.

Having a well-thought out and comprehensive product recall plan avoids scrambling while under pressure, to figure out what to do, what to say, and who is responsible for what, mitigating potential injuries and limiting damage to the brand’s goodwill and bottom line.

Evoke Law can assist with developing product recall plans that comply with the CDPH’s requirements. Contact us at iplaw@evoke.law for information.