Last November, amid the shock and awe of Donald Trump’s presidential election victory, something huge happened in California. Voters finally decided that the time was right to legalise cannabis. No doubt they realised they were going to need it.

The new law has not yet been put in place, and it is currently not possible for just anyone to walk into a dispensary and purchase some marijuana. However, California has long been a medical marijuana state (it was the first to legalise MMJ in 1996) and is – with the possible exception of Colorado – the state with the most liberal attitude to legalisation. As such, there are medical dispensaries everywhere you look, but there are also far fewer regulations than you might expect.

It appears that this may be a problem, and a potentially deadly one at that. According to an investigation undertaken by Leafly, California has a serious dirty weed problem. Their findings paint a pretty bleak picture – one in which even the most prestigious and supposedly ‘organic’ of cannabis competitions is awash with tainted buds and concentrates which simply wouldn’t pass muster in other, stricter states.

Currently, it is believed that only around fifty percent of dispensaries in California have their products professionally tested for mould, fungi, pesticide residue and other contaminants. There is no way to be absolutely sure on the numbers, however, because under Californian law, dispensaries are not legally required to test their products.

Presumably, the rationale behind not requiring mandatory testing was that consumers would not buy products that were of inferior quality, and would naturally gravitate towards those companies that chose to test their products without being compelled to do so, in turn forcing the rest of the competition to adopt testing in order to keep hold of their market share and stay in business. In addition, this process would mean high quality cannabis would make it onto the shelves, whilst contaminated and/or poor quality product would not, without the need for extra legislation

It’s a typically American logic, but one that has clearly not had the desired affect. In fact, according to Steep Hill – a specialist marijuana testing company with a lab in Berkeley, CA – a staggering 84.3% of all samples they tested in California over a 30-day period last year were found to contain residual pesticides. Of course, the presence of pesticides is not necessarily a cause for alarm – many if not most are perfectly safe to consume in small doses, regardless of what the Food Babe tells you – but when it comes to cannabis it is not safe to assume that a pesticide deemed suitable for food is going to be safe when combusted.

A case in point is Myclobutanil. It’s a fungicide, typically used elsewhere in California on grapes, almonds, and strawberries. The Environmental Protection Agency have deemed it a “general use pesticide,” and it was detected by Steep Hill in over 65% of samples during that same 30-day period last year. It’s also banned in Colorado, Washington, and Oregon for use in the production of marijuana. Why? Because, when heated, it produces Hydrogen Cyanide, an extremely poisonous gas covered by the Chemical Weapons Convention.

California’s lack of regulation when it comes to both pesticides and product testing means that the health of consumers is potentially being put at risk. Bear in mind that the samples tested by Steep Hill came from the 50% of dispensaries that actually brother to get their products tested at all. Who knows what’s in the other 50%.

Jmîchaeĺe Keller, President and CEO of Steep Hill, said at the time, “Those in the cannabis community who feel that all cannabis is safe are not correct given this data – smoking a joint of pesticide-contaminated cannabis could potentially expose the body to lethal chemicals.”

Another key issue is the testing labs themselves. There is currently – thanks to the illegality of cannabis at the federal level – no independent regulator to make sure that testing methods are consistent across the board, an issue that was highlighted by the Steep Hill’s investigation. The equipment and the methods they use are so advanced that they can determine the concentration of pesticides down to the 10’s of parts per trillion. According to them, this is “between 100 to 1,000 times more accurate than tests available through other labs.” During the time that Steep Hill conducted their investigation, publicly available pesticide results from another California lab – SC Labs – showed that they “detected pesticides in less than 3% of the samples tested.”

(Steep Hill Laboratories)
(Steep Hill Laboratories)

The difference between these results and those found by Steep Hill are so enormous that it becomes impossible to escape the conclusion that the existence of lab test results is by no means a guarantee of safety. It is not enough to simply insist on testing, there must also be a set of uniform testing standards to ensure that corners are not cut and the safety of consumers remains paramount.

California lawmakers, to their credit, are not oblivious to the flaw in their regulations that has allowed this situation to arise, and in 2015 they passed further legislation to fix it. The new law requires dispensaries to test their cannabis, but crucially it does not come into affect until 2018. This delay seems arbitrary, especially considering that the testing facilities exist in California and are ready to be utilised. Doing so now would greatly increase the safety of consumers and recover some of the trust that has no doubt been lost since Leafly and Steep Hill’s investigations were published.

What this situation highlights is one of the main problems with the USA’s state-first model of legalisation. As much as that method has benefitted the marijuana industry – allowed it to exist at all, in fact – it can also be a hindrance. Every state that has legalised marijuana in any form has done so it its own unique way, with different rules and regulations that only apply within their own state borders. As a result, we have a situation where potentially 84% of weed sold in California would not meet the stricter standards of other legal states like Colorado and Oregon, creating a kind of postcode lottery that discriminates against the safety of consumers depending on where they happen to live.

Of course, the idea of a postcode lottery is intrinsic in the legal marijuana market in the US precisely because of the existence of state – as opposed to federal – laws, which is ironically the very thing that has allowed any kind of legalisation to happen at all. The key to ending this disparity would of course be full federal legalisation, but even that would not necessarily prove to be a panacea, as Canada is currently discovering.

When Prime Minister Trudeau announced his intention to legalise cannabis nationwide both during and after his successful election campaign, his reasons for doing so were clear. This was not about anything as crass as money, he assured voters, it was about protecting the wellbeing of Canada’s kids by implementing strong regulation and restricting their access to what can undoubtedly be a harmful drug. But there were of course other reasons, one of which was a desire to see a clear set of regulations created that could be applied nationwide, thus avoiding the pitfalls of state-by-state legislation.

What has emerged in Canada since the government began the process of legalising cannabis last year, however, is a vacuum in which unregulated dispensaries have began popping up everywhere you look. There have been well-publicised raids on many of this institutions, which have naturally caused a degree of outrage among cannabis enthusiasts who insist that Trudeau is going back on his promise to leave cannabis consumers alone. Whilst raids are probably not necessary, what protesters often overlook is the fact that, unlike in Canada’s strictly regulated medical marijuana industry, these dispensaries are currently existing in a legal grey area which thanks to a lack of oversight potentially puts the health of consumers at risk.

Last year, Toronto’s The Globe and Mail decided to test the safety of dispensary-bought marijuana themselves. According to their investigation, “Of the nine samples The Globe tested, one-third of them would not pass the safety standards set out by Health Canada for the regulated medical marijuana industry. Three samples tested positive for bacteria, in numbers that exceeded federal standards, and one of those also tested positive for potentially harmful mould. Six samples would have been deemed safe to consume by the federal government’s standards for medical marijuana.”

Clearly then, the lack of regulation in the nascent recreational cannabis market in Canada is a potential issue. But it is one that should be fixed with time. More worrying is the current tainted weed scandal rocking Canada’s medical marijuana world.

More than one million Canadian dollars worth of cannabis has so far been destroyed by two companies – Mettrum Ltd. and OrganiGram – since it was discovered that both companies were using our old friend Myclobutanil on their crops, despite it being banned in Canada for cannabis production, just as it is in Colorado, Washington, and Oregon. The details of this scandal are pretty shocking, including allegations from a former Mettrum employee – made to The Globe and Mail – that he had personally witnessed staff spraying plants with the banned fungicide as far back as 2014, and that staff had hidden the Myclobutanil in ceiling tiles during Health Canada inspections, aware that their plants were not being tested for banned chemicals.

(Photo: cannabisculture.com)
(Photo: cannabisculture.com)

Despite these high-profile scandals involving potentially life-threatening chemicals, Health Canada’s response has been, so far, strangely asinine. The companies involved were forced to recall and destroy their products, which cost them plenty of money, and they will in future have to test their products to ensure they are clean. But for some reason the new testing requirement has not been rolled out across the board, meaning the other 36 companies that make up Canada’s medical marijuana industry will only be subjected to random checks. It should be stressed that those other companies have not been accused of using Myclobutanil or any other banned pesticide, but in theory this lack of action by Health Canada would make it a lot easier for them to do so should they wish.

It would be very easy to get caught up in the minutiae of the Canadian government’s position here, to rail against unfair treatment, whether you believe that there are too many regulations in place or too few. But sometimes it’s useful to take a step back, so you can see the bigger picture. this is without a doubt one of those times.

The fact that I am able to write this article, comparing and contrasting different regulatory frameworks, reporting on loopholes that are being closed, and bad behaviour from big business being punished, is quite incredible considering where the campaign for cannabis law reform was a mere 5 or 10 years ago. But this isn’t just a startling display of the progress that has been made, it is a vindication of every reformist argument against prohibition.

It may be true that California has a dirty weed problem. It’s certainly true that at least two Canadian cannabis companies have flouted regulations and sold potentially dangerous products. But the only reason we are aware of these problems – and are able to fix them – is because cannabis is now a regulated product in these places. Black market cannabis sprayed with Myclobutanil, or riddled with potentially deadly moulds, would never have been picked up because it never would have been tested, and the risk to consumers would be far, far greater as a result.

During alcohol prohibition, tainted alcohol was a huge problem, and a killer. Sometimes this was due to the cut-price and unregulated methods employed by bootleggers, and sometimes it was due to the deliberate poisoning of industrial alcohol by the Federal Government, but the point is it was a wholly preventable problem that increased the risks of drinking enormously. But these days, it’s barely an issue at all. At least not in the USA.

You still hear of deaths from other countries, most notably India, where hundreds have died in recent years in a series of tragic poisonings. But these were the result of illicit alcohol produced outside of the law and ignored by the authorities. It is not the regulation itself that was to blame, rather it was the lack of enforcement and the collusion of police and bootleggers.

The reason tainted alcohol is not is big problem elsewhere is because the laws are enforced correctly. As long as that is the case in the marijuana industry too, and as long as the authorities stay vigilant and amend regulations as and when new threats arise, there is no reason to believe that tainted cannabis needs to be a big problem in the future either. It may take a little while to get the legislation just right, but we’re already making progress right now that would have been impossible without legalisation.

Tainted weed is a problem, and consumers need to be aware of it to make an informed decision about what to purchase, but it certainly isn’t a stick with which to beat legalisation. It’s a problem that can only be fixed with more regulation, not less, and I have no doubt that it will be as legal cannabis continues to blossom.

Deej Sullivan is a journalist and campaigner. He regularly writes on drug policy for politics.co.uk, London Real, and many others, and is the Policy & Communications officer at Law Enforcement Against Prohibition UK. Tweets @sullivandeej

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