Cannabis in Oregon can no longer be recalled over a pathogenic mold, until a court decides if the state’s zero-tolerance policy went too far.
In March, the Oregon Health Authority began requiring tests for four strains of the fungus aspergillus and said marijuana couldn’t be sold if it was contaminated.
Many in the cannabis industry criticized the move. They said the fungus is too common, and the state didn’t consider less restrictive alternatives.
“The industry was concerned that that was not a workable standard that could be met, particularly for growers who are growing directly in soil,” said attorney Kevin Jacoby, who represented the Cannabis Industry Alliance of Oregon and others in a legal challenge.
On Aug. 24, the Oregon Court of Appeals placed a 180-day pause on the testing requirement while it reviews the petitioners’ arguments. In response, the OHA officially suspended its policies Sept. 8.
At the center of the debate, businesses and regulators disagree about how dangerous the fungus actually is.
The majority of people breathe in aspergillus spores every day, according to the Centers for Disease Control and Prevention, but individuals with weakened immune systems can develop severe infections.
Additionally, a CDC study from 2016 found that fungal infections in general were more than three times as likely in cannabis users than in people who don’t use it.
However, there’s no documented cases in Oregon linking aspergillosis, an infection caused by aspergillus, to cannabis use. And industry advocates said they shouldn’t pay for something that’s not happening.
Michael Getlin is with the cannabis brand Nectar, which had multiple products recalled in June.
“The real question is,” he said, “does the state have to show actual harm before potentially causing nine figures in business losses to Oregon businesses?”
Additionally, state regulators and industry advocates disagree on how the policy would affect revenues. The OHA reported that around a tenth of aspergillus compliance tests have tested positive since March.
However, that excludes much of the marijuana grown outdoors, which won’t be harvested until this fall. And Jacoby believes that failure rate would have been much higher, as the outside environment is less controlled.
Getlin said because the state cannabis industry is overcrowded and lacks federal financial support, these losses could have caused the industry to spiral.
“All of this operates in the context of years of extreme financial distress on Oregon cannabis licensees,” he said.
In a court document, the OHA challenged the industry’s claims, pointing to 16 other states that have similar policies around pathogenic aspergillus.
The OHA specifically highlighted Michigan, where there was an 11% failure rate for raw marijuana plant material in all of 2022. And it said that number was now declining.
“While some producers will be required to change their methods to avoid mold contamination of their product and may, in the short term, be required to sell their harvest for less lucrative uses,” the filing said, “the impact on the industry as a whole is highly exaggerated.”
The state Court of Appeals will review these arguments. However, Jacoby said that process could end if the OHA replaces their rules with something less strict.
In a press release last Friday, André Ourso at OHA’s Public Health Division said the agency is still concerned about health impacts, “and will consider revisiting rulemaking in the near future.”
In the meantime, previously recalled products can’t be sold. Mark Pettinger with the Oregon Liquor and Cannabis Commission said the agency is waiting on further guidance from the OHA before it addresses these cases.
The Oregon Health Authority provided KLCC with court documents, but declined a request to comment, as it was still working on temporary rules.