Heavy metal testing, too much THC and the fight over Montana’s budding pot industry
By Darrell Ehrlick DAILY MONTANAN
It was a public meeting in the middle of the holidays to discuss marijuana. When it happened, the rules that the state’s Department of Public Health and Humans Services was proposing were already suspended.
And the way the proposed-but-suspended rules were scotched by a legislative interim committee with just email seemed suspect — no one witnessed the vote or even knew about it.
The irregular path of proposed rules that would govern how Montana’s legalized recreational and medical marijuana is tested demonstrates some of the strain that is emerging as the pot industry takes root in the Treasure State.
For example, the Department of Revenue controls most of the marijuana industry in Montana. However, the Montana Department of Public Health and Human Services controls the laboratory testing that cultivators and retailers use.
Some retailers who spoke with the Daily Montanan said the change, mandated by the 2021 Legislature, didn’t change rules as much as it changed the attitude of the state. The retailers and cultivators who spoke to the Daily Montanan did not want to give their names, fearing retaliation and retribution by the state, which illustrates another part of the tension that exists in the burgeoning industry.
The retailers said that under the DPHHS, regulators were less punitive and more concerned about supporting the industry. Meanwhile, the switch to the Department of Revenue has meant that inspectors and regulators are looking for any infraction – no matter how small – and writing fines. They say the model is understandable as the Department of Revenue has been in charge of collecting taxes as well as regulating the liquor industry.
Another fracture in the industry centers on laboratory testing. Currently, there are four labs in the state that perform the required tests on marijuana – pot that is grown and cultivated in state, by law. Those tests often screen for mold and potency. Those labs are still under the DPHHS, a sticking point with some inside the industry because some say it doesn’t make sense to have the industry regulated by two separate departments.
So when the DPHHS proposed a set of new rules for testing and potency, it received pushback from the cannabis industry, which said the state was over-regulating marijuana. However, the mechanics of how those same rules have been temporarily suspended has also raised eyebrows.
A PROCEDURAL ODDITY
DPHHS proposed the new rules in state’s official administrative publication, which is designed to publish and notify the public of the rules that help implement laws set by the legislature. From there, a public hearing was set, which just happened to be in the week between Christmas and New Year’s. Both the publication of the rules, a public comment period and the public hearing are required by state law, except in cases of emergency.
DPHHS spokesperson Jon Ebelt outlined the steps the department took to make the rule:
DPHHS worked for a period of several months to draft and refine the text of the proposed rules. Once this drafting process was complete, the department filed the proposed rulemaking notice in accordance with the requirements of the Montana Administrative Procedure Act. DPHHS also provided separate notice of the proposed rulemaking to each member of the CFHHS interim committee. In addition to the public hearing, written public comment was received for a period of 28 days. The timeline for the rulemaking met the requirements of Montana law and provided members of the public full opportunity to participate in the rulemaking process.
All state departments are monitored by interim legislative committees, which are established to meet during the roughly 18 months the Legislature is out of session – a sort of legislative check on the administration’s power.
However, as part of the Montana Administrative Procedures Act, an interim committee that will not meet before a rule is scheduled to be implemented can informally object to the rule, which suspends it for as long as six months. Staff attorneys with the legislature said this is to allow either the interim committee or the legislature enough time to meet and review the rules.
Informally objecting to a rule requires no formal vote or meeting, and can be done by email, meaning that lawmakers may stop a rule without ever meeting, or voting without public notice.
In this particular case, the interim committee overseeing this rule was the Children Families Health and Human Services Committee, which last met in August.
Interim Committee Chairman Ed Stafman, D-Bozeman, told the Daily Montanan that committee members exercised the rule because DPHHS proposed the rule so late in the year and committee members were concerned.
Stafman said that comments about high costs of laboratory testing for marijuana concerned committee members, and so they decided to slow the process – effectively kicking the issue to the legislature, which is currently in session.
“The industry came out in force and they said that these rules created great hardship and some may even face bankruptcy,” he said.
That gave enough members on the committee — both Democrat and Republican — cause to slow the process, and possibly deal with it during the legislative session.
A public records request shows that six interim committee members objected – Stafman, Rep. Jennifer Carlson, R-Belgrade, Mary Caferro, D-Helena, Sen. Mary McNally, D-Billings, Sen. Jen Gross, D-Billings, Rep. Danny Tenenbaum, D-Missoula.
They all objected via email.
However, the interim committee sent its formal objections on Dec. 28 – the day before – effectively suspending the rule. The Department of Public Health and Human Services informed the attendees at the public hearing the rule was suspended, but it would take comment because the public meeting was published and planned – helping to add to the confusion.
The combination of two different departments, new rules proposed by the administration, and timing have led to criticism that the state’s marijuana policy is inconsistent, unfocused, or punitive.
Even though the rules DPHHS proposed were already suspended before the first public comments were taken, the marijuana industry weighed in on the regulations with a mix of positive and negative comments.
But none of those speaking during the 70-minute hearing supported the measure.
Pepper Peterson, the CEO of the Montana Cannabis Guild, said it was “untoward” for DPHHS to propose rules when the laboratories should be put under the Department of Revenue.
One of the largest issues raised by the retailers and cultivators was additional testing on marijuana products that had already been tested. For example, under the new rules, marijuana used for “pre-rolls” or joints would have to be tested again after it was in a cigarette form.
More testing, along with more packaging and labeling, would exponentially add to the costs, the retailers said, and force many to lease additional space to manage, separate from the retail space.
Others said the bill would just help laboratories become more profitable, but wouldn’t make the products any more safe.
“Most of these rules are overly redundant,” said Adam Reynolds of Collective Elevation. “The department needs to demonstrate a true need for these.”
Anthony Sauer of Green Bee in Billings said that some of the rules, as proposed by the department, remain unclear. That led to a conversation about humidity levels in dry products and the THC content.
“I am not sure what they’re trying to do here,” he said.
Others claimed the new proposed rules were nothing more than a grab by the laboratories.
“These are a money grab by the labs. They are not a tool for health and safety,” said Erica Siate of Stinkblossom.
She said the lab fees in Montana are among the most expensive in the U.S., and the new rules will nearly quadruple the cost of testing.
Katrina Farnum of Garden Mother said just the rules and changes for packaging and labeling have cost businesses thousands, while not really improving safety or business.
“Why are we fixing something that’s not broken?” she asked.
Erin Bolster of Tamarack Cannabis in the Flathead said that most of the marijuana providers in the state got into the business because of medical clients, and now have to compete against either big-business marijuana or street drug dealers.
“Every time you make rules, you have to ask: At what cost and to what end?” he said. “Most of us got into the (industry) because we wanted to help people.”
While many retailers and cultivators voiced concerns about more regulations and some that seemed to complicate the process, others were more mixed about the rules. For example, Doug Felt, an administrator at Uncle Bucks, said that he shared many colleagues’ views about overregulation, but parted company with them when it came to things like testing for heavy metals, part of the new requirements that have been suspended temporarily.
“I don’t believe we can have an industry that can be taken seriously if we’re not willing to take public health seriously,” he said. “And heavy metals are the marijuana industry’s dirty little secret.”
Indeed, he said that he purchased samples from other vendors in Montana and some tested positive.
Meanwhile, reporting nationally on the budding marijuana industry across the U.S., finds that THC potency accuracy is also a concern.
For example, Lester Black of Fivethirtyeight.com, reported that several states have seen results of marijuana potency changed or altered.
Meanwhile, California government officials had to take over part of the testing after it found that labs had been pressured to report nearly impossibly high THC levels in a lab shopping scheme.In October, a similar problem occurred in Nevada.