Contaminated and potentially unsafe marijuana may be for sale in Michigan. And it’s no secret.
The Marijuana Regulatory Agency (MRA) on Tuesday, Dec. 14, released for sale an unknown quantity of marijuana that failed testing for unacceptably high levels of mold, yeast or fungi, including possible pathogens, like aspergillus, according to an email that was obtained from the MRA through a Freedom of Information Act request.
The decision to release the marijuana was in response to a Dec. 3 ruling by Court of Claims Judge Christopher Murray that reversed portions of a massive Nov. 17 recall issued by the MRA.
The MRA placed any marijuana tested by Viridis Laboratories between Aug. 10 and Nov. 16 on hold, until it could be retested. The state’s licensing agency deemed test results issued by Viridis, which operates labs in Lansing and Bay City, “unreliable” or “inaccurate.” The recall, estimated by Viridis in court filings to be about 64,000 pounds of marijuana flower worth an estimated $240 million, didn’t include inhalable concentrates extracted from marijuana.
Once the recall was in place, businesses began scrambling to get product retested and cleared so they could restock their shelves. However, some product failed retesting.
Viridis attorneys then successfully overturned a portion of the recall that pertained to any marijuana products tested by the Bay City Viridis location, whether or not it failed testing in the interim, according to the MRA.
As part of its basis for issuing the recall, the MRA focused on several batches of marijuana suspected of being contaminated with aspergillus, MRA Scientific and Legal Section Manager Claire Pattersonon said when she testified in the Court of Claims on Dec. 2.
“As it relates to this recall, we had started noticing in … our statewide monitoring system that packages were failing for aspergillus and then being sent the next day to the (Viridis) laboratories, at which point they were being reported as passing without remediation by the grower,” MRA Scientific and Legal Section Manager Claire Patterson testified on Dec. 2 at a Court of Claims hearing. “Upon receiving that information, we began requesting additional information from the laboratories.”
The MRA randomly selected licensed labs to retest four samples that had previously failed aspergillus testing but were then passed by Viridis, according to Patterson. All of those samples subsequently failed aspergillus testing. While it’s known some marijuana retested after the initial recall was found to be contaminated, the MRA hasn’t revealed how much failed or was cleared for sale.
“Per the court’s order enjoining the MRA from enforcing the recall as to Viridis North, licensees are permitted to sell or transfer those specific products,” the licensing agency said in an email sent to various businesses Tuesday. “This includes product currently at sales locations.”
The MRA has declined to answer questions about the recall, court order or email, citing litigation and an ongoing investigation into Viridis.
“Eventually a Court of Claims judge said you can’t recall any of the cannabis from Bay City, but he said it in a way that means they have to release from recall all of the Bay City cannabis, even the cannabis that failed testing,” Rick Thompson, the director for the Michigan chapter of National Organization for the Reform of Marijuana Laws (NORML) said Tuesday during Jazz Cabbage Cafe, the marijuana-industry-focused podcast and online show he cohosts. “The MRA, in order to comply with the Court of Claims, had to craft a whole workaround, to get around the computer system that’s specifically designed to not let them do what it is they are now doing.”
Thompson said he never expected the MRA to clear product that has tested positive for biological contaminants.
“I can understand where the court order may have forced their hand, but this is beyond the pale,” he said, “This destroys credibility with the entire system … Wow. That’s confusing on so many levels.”
Cassin Coleman, director of quality and processing at Carbidex, a group of Michigan marijuana businesses, said as long as retailers are labelling their marijuana properly, customers should be able to see where product was initially tested, if it was retested or if it failed. Retailers must also provide upon request a certificate of compliance that details the testing results for any marijuana products and additional information that isn’t included on labelling.
“People who are concerned because they might be immune compromised, they can ask for evidence,” Coleman said. “They can look at the label and choose not to buy the stuff regardless of whether it’s legal to be sold.”
She said higher than allowed levels of yeast and mold don’t usually pose significant health risks.
“In general, most people are not going to be harmed by mold, unless you have an allergy to mold, ” Coleman said. “The pathogenic stuff, it’s unconscionable that, if we have salmonella on it, that we would sell it in the marketplace.
“No one should be OK with doing that, and if they were — I get the court is saying we can, but that’s selling adulterated product.”
The pathogenic contaminates that Michigan tests for in marijuana includes: salmonella, E. coli and aspergillus.
Prior to the release of marijuana that failed testing before the recall was lifted, the MRA cited at least 18 cases involving “adverse health reactions,” up to hospitalization, attributed to recalled marijuana tested by Viridis.
Viridis Labs was founded by three former Michigan State Police Forensic Division employees: Greg Michaud, Todd Welch and Michele Glinn.
“Per the Court’s ruling, recalled products tested by the Bay City lab are cleared to go back to market, regardless of the results of the unnecessary retests,” said Michaud. “The failed retests have no bearing on the accuracy of our initial laboratory results. Once a sample has cleared point-in-time testing, the associated product goes through a variety of uncontrolled environments from transportation to processing/packaging, and finally to the provisioning centers where the product is handled by staff and customers. Contamination can and does occur at any part of these handling processes.”
Coleman said contamination after marijuana passes testing “is quite common.”
“It’s a plant,” she said. “Just like you can have your bread go bad or your strawberries go bad, or things like that, it’s got organic matter on it. If it’s contaminated even a little bit in moist conditions, that can lead to growth.”
Coleman said consumer studies of marijuana sold in Colorado and Nevada found 25% of marijuana sold would have failed testing by the time it reached customers.
Nevertheless, Coleman believes it’s the ethical obligation of a business not to sell marijuana they know is contaminated.
The MRA began investigating Viridis in November of 2020, based on concerns over test results that yielded higher than industry average THC potency. High THC content is desirable to customers and increases demand and sales prices for certain strains of marijuana.
The MRA conducted audits at both Viridis labs on Oct. 26 and Oct. 27, during which investigators determined Viridis was producing inaccurate, unreliable results. In order to test for aspergillus, as well as other types of yeast and mold that is potentially harmful, testing labs keep marijuana samples in incubators for certain lengths of times while in a temperature-controlled environment. The MRA found that Viridis wasn’t keeping a log of when samples were placed into or removed from incubators and that, at times, incubation temperatures strayed from the targeted range.
The MRA began looking at Viridis more closely after it noticed inconsistencies related to the aspergillus testing.
Viridis currently has an active licensed and is permitted by the MRA to conduct all marijuana safety testing. It has a pending administrative complaint filed against the MRA and remains under investigation by the MRA.