Questions Over Illinois Regulator

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What happened with tainted weed state regulators found last spring raises questions about regulation of the state’s booming industry and the high-priced, high-taxed products on dispensary shelves.

Last spring, Illinois dispensary workers and consumers noticed there was mold in a popular brand of pre-rolled marijuana joints.

“Numerous batches” possibly had been contaminated, state regulators said.

But the Illinois Department of Financial and Professional Regulation, which regulates state-licensed marijuana dispensaries, never told the public. It didn’t warn consumers they might have bought tainted weed.

Instead, it emailed dispensary operators on May 22, quietly directing them to quarantine all Mag Landrace cannabis flower products made by Verano Holdings.

State officials told retailers they could initiate a “voluntary recall” of those products — but left that up to the stores while an investigation was conducted.

One chain of dispensaries is known to have informed affected customers: Green Thumb Industries’ Rise locations in Niles, Joliet and downstate Canton. The Niles and Canton stores sell to recreational users and also to medical cannabis patients, which means people with serious health conditions could have gotten the moldy marijuana.

In a notice to customers, an assistant manager at the Canton store identified seven batches of potentially moldy weed sold under the name Mag Landrace and urged customers to “discontinue use of this product and destroy it,” offering a $64 store credit toward a future purchase.

The assistant manager also suggested customers contact a healthcare provider “if you have any questions or concerns about mold allergies.”

The notice about the Verano weed wound up on the popular “Illinois Trees” Reddit group, which spread the word among the nearly 18,000 members of the online community. Many responded by describing similar problems with the Chicago-based marijuana cultivator’s supply.

One user, who identified himself as an employee at a Rise location in Mundelein, wrote he was sickened for almost a week after smoking pre-rolls containing Mag Landrace a few months earlier. He said he threw the rest away, along with other Verano products.

“Smelled and tasted like old pond water,” the user wrote of the weed. “I went to work the next day and smelled every Verano pre-roll we had, and we ended up destroying 1000s of tins.”

He declined an interview request.

What happened with the moldy weed last spring raises questions about regulation of Illinois’ booming cannabis industry and the high-priced, high-taxed products on dispensary shelves.

Illinois has some of the strictest rules in the nation for cannabis safety and quality, with cannabis required to pass tests for mold, yeast, bacteria and other contaminants that are much tougher than those in many states. Some states don’t require testing at all for certain contaminants.

But Illinois officials do little to police those tests to ensure they’re done properly.

Though state regulators can discipline growers — and they have done so in a relative handful of cases, mostly for infractions relating to storage or transport of cannabis, which often results in fines of $5,000 or less — the rules also allow problems to be handled secretly through administrative consent orders that are “considered confidential … not [to] be released.”

The investigation of the potentially moldy Mag Landrace weed went nowhere. The state Department of Agriculture, which regulates growers, says weed from the cultivator was tested and no problems were found.

A spokesman for IDFPR, which sent the May 22 notice, confirmed the quarantine but says the findings of the investigation are secret. The agency is “prohibited … from disclosing the details of specific investigations” by the Illinois Cannabis Regulation and Tax Act and its rules, according to the agency spokesman.

“The department takes allegations regarding products seriously and investigates complaints relating to cannabis products made to the department,” spokesman Paul Isaacs says. “The cannabis industry is still in its infancy, and IDFPR is proud of its efforts in supporting and regulating its growth. IDFPR is committed to continuing to work with the General Assembly, stakeholders and fellow agencies to support the continued growth of a safe, legal marketplace.”

Chris Rohde of Waukegan, who runs a weed-centric YouTube channel called “Cannabev,” posted the Rise dispensary’s Mag Landrace notice on Reddit after obtaining a copy.

Rohde says recreational consumers and medical patients like himself often take a back seat to the “profit-centered” Illinois’ cannabis industry and it’s especially worrisome that the “voluntary recall” involving Mag Landrace weed wasn’t announced to the public, only to dispensaries.

“Folks should be notified if a product they purchased could be tainted,” Rohde says. “Medicinal patients could have had a negative reaction to ingesting moldy cannabis.”

James MacRae, who owns Straight Line Analytics, a cannabis consulting firm near Seattle, says Illinois’ standards — which are tougher than those in many states not only for microbiological contaminants but also for pesticides — are “consumer-friendly. Two thumbs up to whoever created that.”

But MacRae is critical of the secretive way in which Illinois addresses problems with legal weed.

“I do not understand it,” he says of the state’s secret letter to the dispensaries. “It’s putting the responsibility on the shoulders of the drug pushers, of the people who stand to profit. It’s grossly inappropriate.”

Patchwork of state rules
From 2015 to June 30, 2021, 3,115 batches of cannabis flower or processed weed products failed state-required tests for quality and safety in Illinois, according to data obtained by the Sun-Times through six public records requests under the Illinois Freedom of Information Act..

That includes 3,072 failures from 2019 through the first half of 2021 — amounting to just over 7% of cannabis tested in Illinois, going by the state’s figures of the total samples tested.

By far, the most common reason for failing was having mold and yeast above allowed levels, with about 90% of all failing cannabis flower samples since 2019 having mold and yeast counts over state limits.

Other states aren’t as strict. Much of the legal weed that failed Illinois’ testing would have passed muster in Michigan, which has much looser limits on fungal contamination than Illinois for recreational weed.

Microbiological contaminants such as mold, yeast and various bacteria are measured in colony-forming units per gram, or CFU/g, with labs culturing them on testing plates to measure their levels.

Illinois allows up to 1,000 CFU/g for “total yeast and mold.”

Michigan allows far more: total yeast and mold of up to 100,000 CFU/g for recreational weed and up to 10,000 CFU/g for medical marijuana.

In California, there’s no testing requirement for total yeast and mold. Tests are required only for a type of mold called Aspergillus, which can cause serious lung infections.

Connecticut recently increased its limit for mold and yeast to 1,000,000 CFU/g, provided there’s no Aspergillus.

Illinois requires any pesticide residue on cannabis to be below the lowest “action limit” for that compound as set by the U.S Environmental Protection Agency for food. Illinois also requires cannabis to pass tests for five heavy metals.

As with mold, the rules for pesticides vary by state. Washington doesn’t require any testing for pesticides — or heavy metals — unless the cannabis is to be certified for medical use.

“It really is all over the place,” says Lev Spivak-Bindorf, co-founder of PSI Labs in Ann Arbor, Michigan, who has pushed for more transparency for consumers.

Marijuana remains a federally prohibited substance under “Schedule 1” of the Controlled Substances Act. Schedule 1 is meant for drugs with no medical value and high potential for abuse and includes hard drugs like heroin.

For some time, Congress has been inching toward decriminalizing cannabis nationwide, but it’s unclear what President Joe Biden would do.

Without a green light at the federal level, states are left to work out their own regulations.

Even figuring out something as basic as the size of a standard dose has been difficult, says Rosalie Pacula, an economist at the University of Southern California and president of the International Society for the Study of Drug Policy.

“This is not a standard FDA-regulated product,” says Pacula, who studies the regulation of intoxicating substances, including legal drugs like tobacco, alcohol and cannabis and illicit drugs like methamphetamine, heroin and cocaine.

As a result, state regulators often tiptoe around product quality issues, suggesting that potentially bad bud be removed from sale but not demanding a recall, according to Pacula.

“It’s shocking from a consumer standpoint … but we don’t have the FDA here. So there’s no teeth in enforcement,” she says.

And some of the most technically proficient labs in the country, who’ve been testing as contractors for the U.S. Drug Enforcement Administration for years, aren’t involved at all with legal weed because they’d lose out on their federal contracts, she says.

Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, says federal oversight would begin to address the patchwork system’s varying standards for testing.

“At a minimum, it could probably set some sort of a floor, where states might decide on their own that they want to have additional standards on top of those,” Armentano says. “But it would set a sort of a baseline that says, look, these are the minimum criteria of things that have to be screened for, these are the minimum levels that are allowable.”

Some worry that treating cannabis like any other food or drug product would stifle innovation.

“Part of the debate that’s happening right now around this question of federal legalization is whether or not federal governance of the industry right now is a good thing or whether the industry’s actually better served by continuing to operate in this patchwork model so that these local experiments can play out,” says John Kagia, chief knowledge officer for the cannabis research firm New Frontier Data. “So we can actually see, of these different types of rules, regulations and governing authorities, what seems to work best.”

Despite problems with regulation of legal weed, Kagia says the illicit market, by comparison, is “totally unregulated.”

The race for higher THC
Many new cannabis consumers base their purchases on a single factor: potency.

Cultivators know this, and many try to produce crops with the highest possible amount of THC, the psychoactive compound that gets users high.

This past summer, a Utah cultivator announced to much hoopla that it had grown cannabis with 45.13% THC, which would have been close to a record for potency. Subsequent tests at the urging of a medical cannabis patient advocate found the level was actually 21.71% THC.

Cannabis industry experts say the race for higher potency has led to “lab shopping.” They say some growers gravitate to labs that will boost their potency numbers.

MacRae analyzed seed-to-sale data from Washington in 2015 and identified what he called “friendly labs” that had a pattern of more frequently reporting higher potency numbers and less frequently reporting failed tests for microbiological contaminants.

In 2019, Nevada suspended a cannabis testing lab after an investigation found it doctored data to juice THC levels and re-tested samples until they “passed” contaminant tests.

Because consumers are willing to pay a premium for higher THC levels, juicing the numbers even slightly can be lucrative, Kagia says.

“It might not seem like much, the additional couple of percentage points, but, in a market where value is determined in part by potency, that can mean a few extra hundred dollars per pound from a large harvest,” Kagia says.

A report focused on cannabis proficiency testing that was published in February by New Frontier and edited by Kagia warned that “many bad actors” are offering bogus reports either “by choice or in lacking the competency to generate accurate results.”

Some labs even advertise they’ll provide beneficial numbers “without ever testing the material,” the report says. The result, it warned, is inaccurate lab results “undermining the sector overall at a time when precise dosing is increasingly important for product formulation.”

There haven’t been any similar accusations in Illinois, where a handful of labs have received state approval for testing cannabis.

The Illinois agriculture department’s data on weed testing failures obtained by the Sun-Times did not include lab names, so it wasn’t possible to compare labs’ results against each other.

The data did show several cases of potency fluctuating widely within the same batch of weed. For example, there were 12 instances in the state failure data in which samples from the same lot number of cannabis flower was tested twice, on separate dates.

None of the “total potency” levels in the first and second tests lined up exactly. Three of the 12 had potency differences outside the acceptable variance of 15%: One was 28.6% lower on the second test, one was 18.3% lower on the second test, and one was 26.2% higher on the second test.

By law, state regulators collect failing test results from labs, not passing ones. But they say 43,039 samples were tested from 2019 through the first half of 2021, which would mean that about 7% of the state’s weed products failed at least one test — which is a far better failure rate than some states with looser regulations. For example, in 2018, close to 20% of all the samples in California failed tests for potency or purity.

Despite requests over several months for failing test results for mycotoxins and heavy metals, agriculture department officials did not produce any documents.

Asked for failing pesticide results, the agency provided 17 examples, with 16 of them occurring in 2016 and one in 2018. Asked whether that meant there were no failing pesticide tests in 2019, 2020 and 2021, state officials declined to answer.

Spivak-Birndorf, the Ann Arbor lab co-founder, says he was surprised that only about 7% of Illinois cannabis failed. Even with Michigan’s far more permissive limits for mold and yeast, he estimates that about 25% of all flower samples his lab saw last summer flunked.

He says if his state used the stricter Illinois limit for mold and yeast, “I think our failure rate would be closer to 50%.”

Spivak-Birndorf says Illinois regulators should be looking closely at not only the failing results but also the passing results, which might offer a window into whether certain labs are more lenient than others.

Without that oversight, he says, “There’s just not a huge incentive in being very accurate.”

Cannabis-testing laboratories in Illinois must submit an application and independent, third-party verification confirming they meet internationally accepted scientific standards. Labs also must be independent from anyone involved in cultivating or selling cannabis.

Under state regulations, labs must submit a copy of each failing test result to the agriculture department.

But the data files given to the agriculture department are riddled with apparent errors, the Sun-Times found. Virtually all of the results of microbiological tests are logged as being 10 times higher than the state’s limits. And all the pesticides and solvents in the data are noted as “colony-forming units” even though those chemical compounds cannot be cultured into colonies.

State officials attributed the mistakes to typos and said they’re confident of the results the labs are providing.

Regulators rely on what the agriculture department calls “largely a complaint-based system,” though they say inspectors do regular spot checks at cultivation sites.

The agriculture department says it is planning, though won’t say when, to create its own state lab to provide “much-needed capacity” to independently test or verify test results.