Questions remain about next steps for 18 operators in the affected area
On April 6, 2023, the Enforcement and Education Division of the Washington State Liquor and Cannabis Board announced an administrative hold on all products from 18 licensed cannabis farms in a geographic cluster because products from six of the licensees tested over the action limit (0.1 parts-per-million) for a chemical called DDE. DDE is a breakdown molecule from the pesticide DDT, which was one of the most ubiquitously sprayed pesticides in the nation/world (especially on tree-fruit crops) before it was banned for use in the U.S. more than 50 years ago.
Some, but not all the samples from these farms in a small geographic cluster around the town of Brewster have tested over the action limit. The LCB has initiated recalls on those products that tested positive and have fast-tracked testing at the Washington State Department of Agriculture for products from the remaining licensed farms. We have not seen the full battery of positive tests, but the public numbers officials have quoted are from 0.14 PPM in cannabis foliage to 0.27 PPM in extracts created from that biomass.
There is no allegation that the licensees sprayed DDT, which has a half-life of 2 to 15 years, but the Department of Agriculture did indicate that the geographic area where these farms are located were previously orchard land and had a history of the highest DDT application in the state. They also noted that the half-life of DDT was much greater if it was encased in soil. As of yet, outdoor crops in other areas of the state, which are also subject to random testing, have not tested above the action limit for DDE or DDD, another breakdown molecule of DDT.
The U.S. Food and Drug Administration sets the federal standard for DDE in tobacco, the closest analog product, at 0.4 PPM. The LCB initially set action limits for specific chemicals and pesticides commonly used in cultivating cannabis at varying levels (WAC 314-55-108) and then banned essentially every other pesticide known or unknown at a level of 0.1 PPM with or without evidence of harm. DDE and DDD were included.
Although the state-licensed cannabis testing labs only test for approximately 57 common cannabis pesticide analytes, the Department of Agriculture panel tests for approximately 247. The Department of Agriculture will not accept samples from cannabis companies that want to test their product for the full battery of tests and thus are blind to many environmental contaminants that might be in their product. This is particularly difficult as cannabis is a bioaccumulator and can often absorb more environmental contaminants than other agricultural crops.
Walden Cannabis, one of the largest of the brands caught up in this unfortunate situation, has been very vocal in its ethos of no pesticide use in its cultivation of cannabis and also using sustainable gardening methods and practices meant to heal the soil from previous abuse. Walden has been vocally critical of the lack of communication coming from the LCB, not receiving test results or collaborative communication prior to public notice being given by the LCB.
The LCB received additional criticism for implicating other locations where no tests had been performed, including another Walden license not in the geographic area, as well as implicating the entire county, sometimes called the breadbasket of Washington cannabis, where the farms were located and for sending shock waves through the industry and the public. Currently those 18 businesses, as well as hundreds of employees, are effectively shut down.
It is apparent that some of the positive samples were taken by the LCB in August 2022, but not tested by the Department of Agriculture until February 2023. The LCB had those positive test results for at least six weeks, running additional testing, but no communication to the licensees or recalls were instituted until contemporaneous with public notice that was issued in April 2023.
The LCB initially proposed emergency rulemaking that would lower the limit for DDE in cannabis products to zero. But the LCB ultimately pulled back from this position and indicated that there will be no change to the 0.1 PPM action limit, although the agency is considering more protracted rulemaking around this issue. A proposal has been made to change the action limit to the federal standard of 0.4 PPM DDE and additionally to allow remediation of any cannabis products subject to environmental contamination. The LCB said it would entertain rulemaking around this issue, but would be deliberative and follow the science before making any decisions.
On April 14, the LCB announced that it tested six off-the-shelf extracts made from cannabis from the subject farms and all those samples tested from 0.2 to 0.29 PPM. The same day, the LCB held separate meetings with the affected licensees, the state-licensed labs, the cannabis trade associations and lawmakers to answer questions and give more information surrounding this issue. A number of public records requests on the subject have yet to be fulfilled and the LCB has indicated it will release the records but, as of April 19, have not done so.
Talks will be ongoing to determine the extent of this situation. The anticipation is that nothing will happen quickly. It is worth noting that the Washington Legislature was still in session at the time and some calls for lawmakers to act on an urgent basis to make aid available to the affected licenses/workers, as well as potentially expanding the testing regimen in the state-licensed labs, to include DDE and DDD, are also under consideration.